International law; Natural law; War (International law)
Now between these two extremes there is a middle course, requiring a
free passage to be first asked; the refusal of which will justify the
application of force. Thus Agesilaus in his return from Asia when he
had asked a passage of the King of the Macedonians, who answered that
he would consider of it, said, you may consider, if you please, but we
shall pass in the mean time.
The fears, which any power entertains from a multitude in arms passing
through its territories, do not form such an exception as can do away
the rule already laid down. For it is not proper or reasonable that the
fears of one party should destroy the rights of another. Especially,
as necessary precautions and securities may be used, such as those,
for instance, of requiring that the troops shall pass without arms, or
in small bodies; a promise which the Agrippinians made to the Germans.
And, as we are informed by Strabo, the practice still prevails in the
country of the Eleans. Another security may be found in providing
garrisons at the expense of the party, to whom the passage is granted;
or in giving hostages; the condition, which Seleucus demanded of
Demetrius, for permitting him to remain within his territories. Nor
is the fear of offending that power, which is the object of attack, a
sufficient pretext for refusing the passage of the troops to the state
that is engaged in a just war. Nor is it a proper reason to assign for
a refusal, to say that another passage may be found; as every other
power might allege the same, and by this means the right of passage
would be entirely defeated. The request of a passage therefore, by the
nearest and most commodious way, without doing injury and mischief, is
a sufficient ground upon which it should be granted. It alters the case
entirely, if the party making the request is engaged in unjust war,
and is marching with the troops of a power hostile to the sovereign of
that territory; for in this instance, a passage may be refused. For the
sovereign has a right to attack that power in his own territory, and to
oppose its march.
Now a free passage ought to be allowed not only to persons, but to
merchandise. For no power has a right to prevent one nation from
trading with another at a remote distance; a permission which for the
interest of society should be maintained. Nor can it be said that any
one is injured by it. For though he may be thereby deprived of an
exclusive gain, yet the loss of what is not his due, as a MATTER OF
RIGHT, can never be considered as a damage or the violation of a claim.
Public-domain text, read in full here on John Shaqi.
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