246 A Positive Century (1815–1914)identifi ed two of them: a right of self- preservation and a right to propagate
the human species through marriage and the bearing and rearing of chil-
dren. Th e nineteenth- century positivists took this basic idea— and the
right of self- preservation most of all— and applied it to states rather than
individuals.
A more immediate model for the positivists was Hobbes, who had
strongly insisted on a fundamental right of security as a core principle of
his natural- law system. In the original state of nature, this right had be-
longed to individuals (there were no states at that time). But aft er states were
established— and living in a state of nature vis-à- vis one another— it became
easy to think of the principle of self- preservation as being applicable to them.
It was especially easy for lawyers of the voluntarist persuasion to think in this
fashion, with their insistence on the real personality of the state. Just as indi-
viduals could be said to possess fundamental rights, so could states. Other
positivists were less enamored of the idea. Westlake, for example, from the
empiricist camp, did not favor it. Nor did Anzilotti, from the common- will
school. Nevertheless, the idea did achieve general support. Among the em-
piricist group, it had the endorsement of Hefft er, Wheaton, Calvo, Hall, and
Oppenheim.
Th e most obvious of the fundamental rights of states was self- preservation,
or self- defense. Th is received its fi rst signifi cant airing in international law
in the wake of an incident involving Britain and the United States. In 1837,
in the course of a rebellion in the British colony of Upper Canada, the Brit-
ish authorities mounted a cross- border raid into U.S. territory for the pur-
pose of taking action against a ship named the Caroline, which was widely
known to be involved in taking arms supplies from U.S. territory to the Ca-
nadian insurgents. Th e Caroline was captured in a daring night raid, taken
from its mooring into the Niagara River, set on fi re, and left to drift over the
famous falls (with a loss of several lives). Th ere was an outcry in the United
States over this penetration of the national territory by a foreign armed force,
and several years later, in 1841– 42, the governments of the two countries
presented their views of the relevant law.
Th ey were substantially at one on the basic principles. Lord Ashburton,
the British foreign minister, asserted self- defense to be “the fi rst law of our
nature”— with the consequence that, in the face of “a strong overpowering
necessity,” steps could be taken that would not be allowed in the ordinary