It may be voluntarily granted them by the sovereign.
4. Finally, this right may be derived from some treaty made with a foreign power, by which a sovereign has promised to leave full liberty to those of his subjects, who, for a certain reason, on account of religion for instance, desire to transplant themselves into the territories of that power. There are such treaties between the German princes, particularly for cases in which religion is concerned. In Switzerland likewise, a citizen of Bern who wishes to emigrate to Fribourg and there profess the religion of the place, and reciprocally a citizen of Fribourg who, for a similar reason, is desirous of removing to Bern, has a right to quit his native country, and carry off with him all his property.
It appears from several passages in history, particularly the history of Switzerland and the neighbouring countries, that the law of nations, established there by custom some ages back, did not permit a state to receive the subjects of another state into the number of its citizens. This vicious custom had no other <107> foundation than the slavery to which the people were then reduced. A prince, a lord, ranked his subjects under the head of his private property: he calculated their number, as he did that of his flocks; and, to the disgrace of human nature, this strange abuse is not yet every where eradicated.
§226. If the sovereign infringes their right, he injures them.
If the sovereign attempts to molest those who have a right to emigrate, he does them an injury; and the injured individuals may lawfully implore the protection of the power who is willing to receive them. Thus we have seen Frederic William,75 king of Prussia, grant his protection to the emigrant protestants of Saltzburgh.
The name of supplicants is given to all fugitives who implore the protection of a sovereign against the nation or prince they have quitted. We cannot solidly establish what the law of nations determines with respect to them, until we have treated of the duties of one nation towards others.
Finally, exile is another manner of leaving our country. An exile is a man driven from the place of his settlement, or constrained to quit it, but without a mark of infamy. Banishment is a similar expulsion, with a mark of infamy annexed.* Both may be for a limited time, or for ever. If an exile or banished man had his settlement in his own country, he is exiled or banished from his country. It is however proper to observe that common usage applies also the terms, exile and banishment, to the expulsion of a foreigner who is driven from a country where he had no settlement, and to which he is, either for a limited time or for ever, prohibited to return.
As a man may be deprived of any right whatsoever by way of punishment,—exile, which deprives him of the right of dwelling in a certain place, may be inflicted as a punishment: banishment is always one; for a mark of infamy cannot be set on any one, but with the view of punishing him for a fault, either real or pretended.
When the society has excluded one of its members by a perpetual banishment, he is only banished from the lands of that society, and it cannot hinder him from living wherever else he pleases; for, after having driven him out, it can no longer claim any authority over him. The contrary, however, may take place by particular conventions between two or more states. Thus every member of the Helvetic confederacy may banish its own subjects out of the territories of Switzerland in general; and in this case the banished person will not be allowed to live in any of the cantons, or in the territories of their allies.
Exile is divided into voluntary and involuntary. It is voluntary, when a man quits his settlement, to escape some punish-<108>ment, or to avoid some calamity,—and involuntary, when it is the effect of a superior order.
Sometimes a particular place is appointed, where the exiled person is to remain during his exile; or a certain space is particularised, which he is forbid to enter. These various circumstances and modifications depend on him who has the power of sending into exile.
§229. The exile and banished man have a right to live somewhere.
A man, by being exiled or banished, does not forfeit the human character, nor consequently his right to dwell somewhere on earth. He derives this right from nature, or rather from its author, who has destined the earth for the habitation of mankind; and the introduction of property cannot have impaired the right which every man has to the use of such things as are absolutely necessary,—a right which he brings with him into the world at the moment of his birth.
But though this right is necessary and perfect in the general view of it, we must not forget that it is but imperfect with respect to each particular country. For, on the other hand, every nation has a right to refuse admitting a foreigner into her territory, when he cannot enter it without exposing the nation to evident danger, or doing her a manifest injury. What she owes to herself, the care of her own safety, gives her this right; and in virtue of her natural liberty, it belongs to the nation to judge, whether her circumstances will or will not justify the admission of that foreigner (Prelim. §16). He cannot then settle by a full right, and as he pleases, in the place he has chosen, but must ask permission of the chief of the place; and if it is refused, it is his duty to submit.
§231. Duty of nations towards them.
However, as property could not be introduced to the prejudice of the right acquired by every human creature, of not being absolutely deprived of such things as are necessary,—no nation can, without good reasons, refuse even a perpetual residence to a man driven from his country. But if particular and substantial reasons prevent her from affording him an asylum, this man has no longer any right to demand it,—because, in such a case, the country inhabited by the nation cannot, at the same time, serve for her own use, and that of this foreigner. Now, supposing even that things are still in common, nobody can arrogate to himself the use of a thing which actually serves to supply the wants of another. Thus a nation, whose lands are scarcely sufficient to supply the wants of the citizens, is not obliged to receive into its territories a company of fugitives or exiles. Thus it ought even absolutely to reject them, if they are infected with a contagious disease. Thus also it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens, that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, to follow, in this respect, the suggestions of prudence. But this prudence should be free from unnecessary suspicion and jealousy;—it should not be carried so far as to <109> refuse a retreat to the unfortunate, for slight reasons, and on groundless and frivolous fears. The means of tempering it will be never to lose sight of that charity and commiseration which are due to the unhappy. We must not suppress those feelings even for those who have fallen into misfortune through their own fault. For we ought to hate the crime, but love the man, since all mankind ought to love each other.
§232. A nation cannot punish them for faults committed out of its territories,
If an exile or banished man has been driven from his country for any crime, it does not belong to the nation in which he has taken refuge, to punish him for that fault committed in a foreign country. For nature does not give to men or to nations any right to inflict punishment, except for their own defence and safety (§169); whence it follows, that we cannot punish any but those by whom we have been injured.