§93. How a nation acquires a perfect right to a foreign trade.
Men and sovereign states may, by their promises, enter into a perfect obligation with respect to each other, in things where nature has imposed only an imperfect obligation. A nation, not having naturally a perfect right to carry on a commerce with another, may procure it by an agreement or treaty. This right is then acquired only by treaties, and relates to that branch of the law of nations termed conventional (Prelim. §24). The treaty that gives the right of commerce, is the measure and rule of that right.
§94. Of the simple permission of commerce.
A simple permission to carry on commerce with a nation gives no perfect right to that commerce. For if I merely and simply permit you to do any thing, I do not give you any right to do it afterwards in spite of me:—you may make use of my condescension as long as it lasts; but nothing prevents me from changing my will. As then every nation has a right to chuse whether she will or will not trade with another, and on what conditions she is willing to do it (§92),—if one nation has for a time permitted another to come and trade in the country, she is at liberty, whenever she thinks proper, to prohibit that commerce,—to restrain it,—to subject it to certain regulations; and the people who before carried it on cannot complain of injustice.
Let us only observe, that nations, as well as individuals, are obliged to trade together for the common benefit of the human race, because mankind stand in need of each other’s assistance (Prelim. §§10, 11, and Book I. §88): still however, each nation remains at liberty to consider, in particular cases, whether it be convenient for her to encourage, or permit commerce; and as our duty to ourselves is paramount to our duty to others,—if one nation finds herself in such circumstances, that she thinks foreign commerce dangerous to the state, she may renounce and prohibit it. This the Chinese have done for a long time together. But, again, it is only for very serious and important reasons that her duty to herself should dictate such a reserve; otherwise, she could not refuse to comply with the general duties of humanity.
§95. Whether the laws relating to commerce are subject to prescription.
We have seen what are the rights that nations derive from nature with regard to commerce, and how they may acquire others by treaties:—let us now examine whether they can found any on long custom. To determine this question in a solid manner, it is necessary first to observe, that there are rights which consist in a simple power: they are called in Latin, jura merae facultatis, rights of mere ability. They are such in their own nature, that he who possesses them may use them or not, as he thinks proper,—being absolutely free from all restraint in this respect; so that the actions that relate to the exercise of these rights, are acts of mere free will, that may be done or not done according to pleasure. It is manifest that rights of this kind cannot be lost by prescription on account of their not <41> being used, since prescription is only founded on consent legitimately presumed; and that, if I possess a right which is of such a nature that I may or may not use it as I think proper, without any person having a right to prescribe to me on the subject, it cannot be presumed, from my having long forborne to use it, that I therefore intend to abandon it. This right is then imprescriptible, unless I have been forbidden or hindered from making use of it, and have obeyed with sufficient marks of consent. Let us suppose, for instance, that I am entirely at liberty to grind my corn at any mill I please, and that during a very considerable time, a century if you please, I have made use of the same mill:—as I have done in this respect what I thought proper, it is not to be presumed, from this long-continued use of the same mill, that I meant to deprive myself of the right of grinding at any other; and consequently, my right cannot be lost by prescription. But now suppose, that, on my resolving to make use of another mill, the owner of the former opposes it, and announces to me a prohibition;—if I obey his prohibition without necessity, and without opposition, though I have it in my power to defend myself, and know my right, this right is lost, because my conduct affords grounds for a legitimate presumption that I chose to abandon it.—Let us apply these principles.—Since it depends on the will of each nation to carry on commerce with another, or not to carry it on, and to regulate the manner in which it chuses to carry it on (§92), the right of commerce is evidently a right of mere ability (jus merae facultatis), a simple power,—and consequently is imprescriptible. Thus, although two nations have traded together, without interruption, during a century, this long usage does not give any right to either of them; nor is the one obliged on this account to suffer the other to come and sell its merchandises, or to buy others:—they both preserve the double right of prohibiting the entrance of foreign merchandise, and of selling their own wherever people are willing to buy them. Although the English have from time immemorial been accustomed to get wine from Portugal, they are not on that account obliged to continue the trade, and have not lost the liberty of purchasing their wines elsewhere. Although they have, in the same manner, been long accustomed to sell their cloth in that kingdom, they have, nevertheless, a right to transfer that trade to any other country: and the Portuguese, on their part, are not obliged by this long custom, either to sell their wines to the English, or to purchase their cloths. If a nation desires any right of commerce which shall no longer depend on the will of another, she must acquire it by treaty.30
§96. Imprescriptibility of rights founded on treaty.
What has been just said may be applied to the rights of commerce acquired by treaties. If a nation has by this method procured the liberty of selling certain merchandises to another, she does not lose her right, though a great number of years are suffered to elapse without its being used; because this right is a <42> simple power, jus merae facultatis, which she is at liberty to use or not, whenever she pleases.
Certain circumstances, however, may render a different decision necessary, because they imply a change in the nature of the right in question. For instance, if it appears evident, that the nation granting this right granted it only with the view of procuring a species of merchandise of which she stands in need,—and if the nation which obtained the right of selling, neglects to furnish those merchandises, and another offers to bring them regularly, on condition of having an exclusive privilege,—it appears certain that the privilege may be granted to the latter. Thus the nation that had the right of selling, would lose it, because she had not fulfilled the tacit condition.
§97. Of monopolies, and trading companies, with exclusive privileges.
Commerce is a common benefit to a nation; and all her members have an equal right to it. Monopoly therefore, in general, is contrary to the rights of the citizens. However, this rule has its exceptions, suggested even by the interest of the nation; and a wise government may, in certain cases, justly establish monopolies. There are commercial enterprises that cannot be carried on without an energy that requires considerable funds, which surpass the ability of individuals. There are others that would soon become ruinous, were they not conducted with great prudence, with one regular spirit, and according to well-supported maxims and rules. These branches of trade cannot be indiscriminately carried on by individuals: companies are therefore formed, under the authority of government; and these companies cannot subsist without an exclusive privilege. It is therefore advantageous to the nation to grant them: hence have arisen, in different countries, those powerful companies that carry on commerce with the East. When the subjects of the United Provinces established themselves in the Indies on the ruin of their enemies the Portuguese, individual merchants would not have dared to think of such an arduous enterprise; and the state itself, wholly taken up with the defence of its liberty against the Spaniards, had not the means of attempting it.
It is also certain beyond all doubt, that, whenever any individual offers, on condition of
