This violent breach in the community of Europe we must conclude to have
been made (even if they had not expressly declared it over and over
again) either to force mankind into an adoption of their system, or to
live in perpetual enmity with a community the most potent we have
ever known. Can any person imagine, that, in offering to mankind this
desperate alternative, there is no indication of a hostile mind, because
men in possession of the ruling authority are supposed to have a right
to act without coercion in their own territories. As to the right of men
to act anywhere according to their pleasure, without any moral tie, no
such right exists. Men are never in a state of TOTAL independence of
each other. It is not the condition of our nature: nor is it conceivable
how any man can pursue a considerable course of action without its
having some effect upon others; or, of course, without producing some
degree of responsibility for his conduct. The SITUATIONS in which
men relatively stand produce the rules and principles of that
responsibility, and afford directions to prudence in exacting it.
Distance of place does not extinguish the duties or the rights of men;
but it often renders their exercise impracticable. The same circumstance
of distance renders the noxious effects of an evil system in any
community less pernicious. But there are situations where this
difficulty does not occur; and in which, therefore, these duties are
obligatory, and these rights are to be asserted. It has ever been the
method of public jurists to draw a great part of the analogies, on which
they form the law of nations, from the principles of law which prevail
in civil community. Civil laws are not all of them merely positive.
Those, which are rather conclusions of legal reason than matters of
statutable provision, belong to universal equity, and are universally
applicable. Almost the whole praetorian law is such. There is a "Law of
Neighbourhood" which does not leave a man perfectly master on his
own ground. When a neighbour sees a NEW ERECTION, in the nature of a
nuisance, set up at his door, he has a right to represent it to the
judge; who, on his part, has a right to order the work to be stayed; or,
if established, to be removed. On this head the parent law is express
and clear, and has made many wise provisions, which, without destroying,
regulate and restrain the right of OWNERSHIP, by the right of VICINAGE.
No INNOVATION is permitted that may redound, even secondarily, to the
prejudice of a neighbour. The whole doctrine of that important head
of praetorian law, "De novi operis nunciatione," is founded on the
principle, that no NEW use should be made of a man's private liberty
of operating upon his private property, from whence a detriment may
be justly apprehended by his neighbour. This law of denunciation is
prospective. It is to anticipate what is called damnum infectum, or
damnum nondum factum, that is, a damage justly apprehended, but not
actually done. Even before it is clearly known whether the innovation
be damageable or not, the judge is competent to issue a prohibition to
innovate, until the point can be determined. This prompt interference is
grounded on principles favourable to both parties. It is preventive
of mischief difficult to be repaired, and of ill blood difficult to be
softened. The rule of law, therefore, which comes before the evil, is
amongst the very best parts of equity, and justifies the promptness
of the remedy; because, as it is well observed, Res damni infecti
celeritatem desiderat, et periculosa est dilatio. This right of
denunciation does not hold, when things continue, however inconveniently
to the neighbourhood, according to the ANCIENT mode. For there is a sort
of presumption against novelty, drawn out of a deep consideration of
human nature, and human affairs; and the maxim of jurisprudence is well
laid down, Vetustas pro lege semper habetur.
Such is the law of civil vicinity. Now where there is no constituted
judge, as between independent states there is not, the vicinage itself
is the natural judge. It is, preventively, the assertor of its own
rights, or remedially, their avenger. Neighbours are presumed to take
cognizance of each other's acts. "Vicini vicinorum facta praesumuntur
scire." This principle, which, like the rest, is as true of nations as
of individual men, has bestowed on the grand vicinage of Europe a duty
to know, and a right to prevent, any capital innovation which may amount
to the erection of a dangerous nuisance.