§1. The law of nations consists of those rules by which intercourse between nations is regulated. In its present improved state, the law of nations has not long existed. Ancient nations were little governed by the principles of natural justice. Little respect was paid by one nation to the persons and property of the citizens of another. Robbery on land and sea was not only tolerated, but esteemed honorable; and prisoners of war were either put to death, or reduced to slavery. By this rule of national law, commerce was destroyed, and perpetual enmity kept up between nations.
§2. Within the last three or four centuries, essential improvement in the law of nations has been made. By the light of science and Christianity, the rights and obligations of nations have come to be better understood, and more generally regarded. Commerce also has done much to improve the law, by showing that the true interests of a nation are promoted by peace and friendly intercourse.
§3. Hence we find the nations of Europe and America recognizing the same rules of international law. And as the light and power of Christianity shall increase, the law of nations will undergo still further improvements. And it is to be hoped, that, as one of these improvements, the practice of settling national disputes by war will be abolished, and the more rational and humane course be adopted, of referring difficulties which the parties are incapable of adjusting, to some disinterested power for adjudication.
§4. There are, in every nation or state, courts of justice to try and punish offenders; but there is no tribunal before which one nation can be brought to answer for the violation of the rights of another. Every nation, however small and weak, is independent of every other. Therefore, when injuries are committed by one upon another, the offended party, unless it chooses quietly to endure the wrong must seek redress, either by appealing to the sense of justice of the party offending, or by a resort to force.
§5. Every nation has a right to establish such government as it thinks proper; and no other nation has a right to interfere with its internal policy. To this rule, however, some writers make an exception. They hold that the natural right of a state to provide for its own safety, gives it the right to interfere where its security is seriously endangered by the internal transactions of another state. But it is admitted that such cases are so very rare, that it would be dangerous to reduce them to a rule.
§6. So cases seldom arise in which one nation has a right to assist the subjects of another in overturning or changing their government. It is generally agreed, that such assistance may be afforded consistently with the law of nations, in extreme cases; as when the tyranny of a government becomes so oppressive, as to compel the people to rise in their defense, and call for assistance. When the subjects of any government have carried their revolt so far as to have established a new state, and to give reasonable evidence of their ability to maintain a government, the right of assistance is unquestionable. But it is not clear that, prior to this state of progress in a revolution, the right to interpose would be justifiable.
§7. There is a sense, however, in which nations are not wholly independent. Mankind in the social state, as we have seen, are dependent upon each other for assistance. (Chap. I, §2.) Such is, in a measure, the mutual dependence of nations. Although the people of every nation have within themselves the means of maintaining their individual and national existence, their prosperity and happiness are greatly promoted by commerce with other nations. And as laws are necessary to govern the conduct of the individual citizens of a state, so certain rules are necessary to regulate the intercourse of nations.
§8. It has been observed, also, that the law of nature is a perfect rule for all moral and social beings, and ought to be universally obeyed. Equally binding is this law upon nations. It requires each nation to respect the rights of all others, and to do for them what their necessities demand, and what it is capable of doing, consistently with the duties it owes to itself. And the general good of mankind is as really promoted by the application of this law to the affairs of nations, as by its application to the affairs of individuals.
§9. The law of nature applied to nations or states as moral persons, is called the natural law of nations. It is also called the necessary law of nations, because nations are morally bound to observe it; and sometimes the internal law of nations, from its being binding on the conscience.
§10. Although the law of nature, as expressed in the law of revelation, is a correct rule of human conduct; yet, as much of this law consists of general principles from which particular duties can not always be deduced, positive human enactments are necessary to define the law of nature and revelation. So an important part of the law of nations necessarily consists of positive institutions. Hence some writers have divided international law under these two principal heads: the natural law of nations, and the positive.
§11. The positive law of nations is founded on usage or custom and agreement, and may be considered as properly divided into the customary law of nations, and the conventional. The customary law of nations consists of certain maxims, or is founded on customs and usages which have been long observed and tacitly consented to by nations, and have thereby become binding upon all who have adopted them, so far as their observance does not require a violation of the law of nature.
§12. A conventional law of nations is one that has been established by a treaty or league. The word convention usually signifies an assembly of persons met for some benevolent, political, or ecclesiastical purpose. It also signifies a treaty, or agreement between nations; and such agreement or contract, though made without a formal meeting, is deemed conventional.
§13. As the law of nature is liable to misconstruction, and as the law of usage or custom is vague and uncertain, conventional law, because more definite, has been found to afford greater security to the rights of commerce. Hence the practice, now so common among nations, of regulating their intercourse by negotiation. By treaties, the rights of the contracting parties are placed beyond dispute.
§14. But it may be said, if each nation is independent of every other, and if there is no constituted authority to enforce the fulfillment of treaty stipulations, the rights guarantied by treaties are still insecure. But few governments are so devoid of a sense of honor as, by a palpable violation of treaty obligations, to incur the odium and condemnation of all mankind. Self-respect and the fear of provoking a war, have generally proved sufficient incentives to the observance of treaties.
§15. The obligations of nations are sometimes called imperfect. A perfect obligation is one that can be enforced--one that exists where there is a right to compel the party on whom the obligation rests to fulfill it. An imperfect obligation gives only the right to demand the fulfillment, leaving the party pledged to judge what his duty requires, and to do as he chooses, without being constrained by another to do otherwise.
§1. The seas are regarded as the common highway of nations. The main ocean, for navigation and fishing, is open to all mankind. Every state, however, has jurisdiction at sea over its own subjects in its own public and private vessels. The persons on board such vessels are protected and governed by the laws of the country to which they belong, and may be punished by these laws for offenses committed on board of its public vessels in foreign ports.
§2. The question how far a nation has jurisdiction over the seas adjoining its lands, is not clearly settled. It appears to be generally conceded, that a nation has a right of exclusive dominion over navigable rivers flowing through its territory; the harbors, bays, gulfs, and arms of the sea; and such extent of sea adjoining its territories as is necessary to the safety of the nation, which is considered by some to be as far as a cannon shot will reach, or about a marine league.
§3. It is the duty of a nation in time of peace, to allow the people of other states a passage over its lands and waters, so far as it can be permitted without inconvenience, and with safety to its own citizens. Of this the nation is to be its own judge. The right of passage is only an imperfect right, because the obligation to grant the right is an imperfect obligation. (Chap. LXIII, §15.)
§4. In general, it is the duty of a nation to allow foreigners to enter and settle in the country. On being admitted into a state, the state becomes pledged for their protection, and they become subject to its laws; and in consideration of the protection they receive, they are obliged to aid in defending it, and in supporting its government, even before they are admitted to all the rights of citizens.
§5. But no state is bound to shelter criminals fleeing into it from a foreign state. They can be tried only in the state whose laws they have violated. It is therefore the duty of the government to surrender a fugitive on demand of the proper authorities of the state from which he fled, if, after due examination by a civil magistrate, there shall appear sufficient grounds for the charge. The surrender of criminals is sometimes provided for in treaties.
§6. The rule which makes foreigners amenable to the laws of the state in which they remove, does not apply to embassadors. They are not responsible to the laws of the country to which they are sent, even when guilty of crime. When their conduct is dangerous to the government and its citizens, all that can be done is, either to deprive them of liberty by confinement, or to send them home and demand their punishment. As every nation has a right to treat and communicate with all others, it ought not to be deprived of the services of its representative. Hence, the persons and property of all public ministers are held sacred and inviolable.
§7. Embassadors are entitled to the same protection in the countries through which they pass in going to, and returning from the government to which they are sent. And to insure them a safe passage, some governments have given them passports to be shown if required. A passport is a written license from the authority of a state granting permission or safe conduct for one to pass through its territory. Passports, though named in our law, are not known in practice, being deemed unnecessary.
§8. If a minister at a foreign court treats the sovereign with disrespect, the fact is sometimes communicated to the government that sent him, with a request for his recall. Or, if the offense is a more serious one, the offended sovereign refuses intercourse with him while his master's answer is awaited. Or, if the case is an aggravated one, he expels him from the country.
§9. Ministers at foreign governments, in their negotiations or business correspondence with those governments, sometimes consider themselves ill treated, and their own nation dishonored, and take their leave and return home; or the minister informs his sovereign, who either recalls him, or takes such other measure as he thinks the honor and interest of his nation demand.
§10. The peculiar condition of a country, the nature of the business upon which an embassador is sent, or the personal character of the embassador, may be such as to justify a government in refusing to receive him. But to preserve the friendly relations of the two countries, satisfactory explanations ought to be made, or good reasons offered for the refusal.
§11. A minister can not bind his sovereign to any treaty or agreement, conclusively, under the authority of an ordinary credential, or letter of attorney. He can not do so without a special power, containing express authority so to bind his principal. Ministers act under secret instructions which they are not bound to disclose. Even the treaties signed by plenipotentiaries, (a word signifying full power,) are, according to present usage, of no force, until ratified by their governments.
§12. Consuls are not entitled to the privilege enjoyed by ministers, but are subject to the laws of the country in which they reside. Their principal duties have been described. (Chap. XL, §9.) The office of consul has been found to be one of great utility; hence, every trading nation has a consul in every considerable commercial port in the world. As in the case of ministers, consuls carry a certificate of their appointment, and must be acknowledged as consuls by the government of the country in which they reside, before they can perform any duties pertaining to their office.
§1. Wars are offensive and defensive. The use of force to obtain justice for injuries done, is offensive war. The making use of force against any power that attacks a nation or its privileges, is defensive war. A war may be defensive in its principles, though offensive in its operation. For example: one nation is preparing to invade another; but before the threatened invasion takes place, the latter attacks the former as the best mode of repelling the invasion. In this case, the party making the attack acts on the defensive. (§10.) The contending parties are called belligerents. The word belligerent is from the Latin bellum, war, and gero, to wage or carry on. Nations that take no part in the contest, are called neutrals.
§2. War ought never to be undertaken without the most cogent reasons. In the first place, there must be a right to make war, and just grounds for making it. Nations have no right to employ force any further than is necessary for their own defense, and for the maintenance of their rights. Secondly, it should be made from proper motives, the good of the state, and the safety and common advantage of the citizens. Hence, there may be, according to the law of nations, just cause of war, when it would be inexpedient to involve the nation in such a calamity.
§3. The numerous objects of a lawful war may be reduced to these three: (1.) To recover what belongs to us, or to obtain satisfaction for injuries. (2.) To provide for our future safety by punishing the offender. (3.) To defend or protect ourselves from injury by repelling unjust attacks. The first and second are objects of an offensive war; the third is that of a defensive war.
§4. Injury to an individual citizen of a state, by the subjects of another state, is deemed a just cause of war, if the persons offending, or the government of the state to which they belong, do not make reparation for the injury; for every nation is responsible for the good behavior of its subjects. But, although this would, according to the law of nations, afford justifiable cause of war, neither the honor nor the true interest of a nation requires that war should always be made for so slight a cause.
§5. Generally, the injury sought to be redressed should be serious, and satisfaction be demanded and refused, before recourse should be had to arms. Where there is a question of right between the parties, the government making war should have no reasonable doubt of the justice of its claim. And even when no such doubt exists, it would be the duty of such government to prevent a war, if possible, by proposals of compromise. It is believed that war ought in no case to be made, until attempts have been made to effect an adjustment of difficulties by compromise, or by offers to submit them for arbitration.
§6. One of the means by which satisfaction is sought without making war, is that of reprisals. (Chap. XXXVI, §4, 5.) If a nation has taken what belongs to another, or refuses to pay a debt, or to make satisfaction for an injury, the offended nation seizes something belonging to the former or to her citizens, and retains it, or applies it to her own advantage, till she obtains satisfaction: and when there shall be no longer any hope of satisfaction, the effects thus seized are confiscated. To confiscate is to adjudge property to be forfeited, and to appropriate it to the use and benefit of the state. But as the loss in this case would fall upon unoffending citizens, it is the duty of their government to grant them indemnity.
§7. But to justify reprisals by the law of nations, the grounds upon which they are authorized must be just and well ascertained. If the right of the party demanding satisfaction is doubtful, he must first demand an equitable examination of his claim, and next be able to show that justice has been refused, before he can justly take the matter into his own hands. He has no right to disturb the peace and safety of nations on a doubtful pretension. But if the other party refuses to have the matter brought to the proof, or to accede to any proposition to terminate the dispute in a peaceable manner, reprisals become lawful.
§8. By treaties of alliance, nations sometimes agree to assist each other in case of war with a third power. It is a question not clearly settled, whether the government that is to afford the aid is bound to do so when it deems the war to be unjust. The reasonable conclusion seems to be, that, in cases simply doubtful, the justice of the war is to be presumed; and the government pledging its aid is bound to fulfill its engagement. The contrary doctrine would furnish a nation with too ready a pretext for violating its pledge. In cases only of the clearest injustice on the part of its ally, can a nation rightfully avoid a positive engagement to afford assistance.
§9. But when the object of the war is hopeless, or when the state under such engagement would, by furnishing the assistance, endanger its own safety, it is not bound to render the aid. But the danger must not be slight, remote, or uncertain. None but extreme cases would afford sufficient cause for withholding the promised assistance.
§10. When the alliance is defensive, the treaty binds each party to assist the other only when engaged in a defensive war, and unjustly attacked. By the conventional law of nations, the government that first declares, or actually begins the war, is considered as making offensive war; and though it should not be the first actually to apply force, yet if it first renders the application of force necessary, it is the aggressor; and the other party, though the first to apply force, is engaged in a defensive war. (§1.)
§1. When a nation has resolved on making war, it is usual to announce the fact by a public declaration. In monarchical governments, the power to declare war, which of course includes the right of determining the question whether it shall be made, is vested in the king. In the United States, this power is, by the constitution, given to the representatives of the people, for reasons elsewhere stated. (Chap. XXXVI, §3.)
§2. It was usual, formerly, to communicate a declaration of war to the enemy. According to modern practice, a formal declaration to the enemy is not required. Any manifesto or paper from an official source, announcing that the country is in a state of war, is considered sufficient. The recalling of a minister has alone been regarded as a hostile act, and followed by war, without any other declaration. But such cases have not been frequent. Under ordinary circumstances, the recall of a minister is not an offensive act.
§3. The government of a state acts for and in behalf of all its citizens; and its acts are binding upon all. Hence, when war is declared, it is not merely a war between the two governments; all the subjects of the government declaring it become enemies to all the subjects of that against which it is declared.
§4. Whether, on the occurrence of a war in any state, the subjects of the enemy found within the state may be detained as prisoners of war, and their movable property confiscated; or whether they are entitled to a reasonable time to retire with their effects, is a question upon which writers of public law are not agreed. Few civilized nations, at the present day, would deny such persons a reasonable time to retire with their property. Of houses and lands, all admit that only the income is subject to confiscation. The privilege spoken of, instead of being left to uncertainty, is now, with great propriety, generally secured by treaty.
§5. When war is declared, all intercourse between the two countries at once ceases. All trade between the citizens, directly or indirectly, is strictly forbidden; and all contracts with the enemy made during the war are void.
§6. Although a state of war makes all the subjects of one nation enemies of all those of the other, they cannot lawfully engage in offensive hostilities without permission of their government. If they have no written commission as evidence of such permission, and if they should be taken by the enemy, they would not be entitled to the usual mild treatment which other prisoners of war receive, but might be treated without mercy as lawless robbers and banditti.
§7. As the object of a just war is to obtain justice, a nation, when it has declared war, has a right to use all necessary means, and no other, for attaining that end. A just war gives the right to take the life of the enemy; but there are limits to this right. If an enemy submits, and lays down his arms, we can not justly take his life. And justice and humanity forbid that women, children, feeble old men, and sick persons, who make no resistance, should be maltreated.
§8. Prisoners of war are not to be treated with cruelty. They may be confined, and even fettered, if there is reason to apprehend that they will rise against their captors, or make their escape. Prisoners of war are detained to prevent their returning to join the enemy, or to obtain from their government a just satisfaction as the price of their liberty. Prisoners may be kept till the end of the war. Then, or at any time during the war, the government may exchange them for its own soldiers taken prisoner by the enemy; or a ransom may be required for their release. It is the duty of the government to procure, at its own expense, the release of its citizens.
§9. Ravaging a country, burning private dwellings, or otherwise wantonly destroying property, is not justifiable, except in cases of absolute necessity. But all fortresses, ramparts, and the like, being appropriated to the purposes of war, may be destroyed.
§10. Stratagems and deceit to obtain advantage of an enemy, are, to some extent, justified by the law of nations; but in general they are dishonorable and wrong.
§11. Spies are sometimes sent among an enemy, to discover the state of his affairs, to pry into his designs, and carry back information. This is a dishonorable office; spies, if detected, are condemned to death.
§12. The rights of a nation in war at sea are essentially different from those in war upon land. The object of a maritime war is to destroy the commerce and navigation of the enemy, with a view of weakening his naval power. To this end, the capture or destruction of private property is necessary, and is justified by the law of nations. Hence, for the purpose of attack as well as defense, every nation of considerable power or commercial importance, keeps a navy, consisting of a number of war vessels, ready for service.
§13. Besides these national ships of war, there are armed vessels owned by private citizens, and called privateers. Their owners receive from the government a commission to go on the seas, and to capture any vessel of the enemy, whether it is owned by the government or by private citizens, or whether it is armed or not. And to encourage privateering, the government allows the owner and crew of a privateer to keep the property captured as their own.
§14. To prevent the abuse of this right, the owners are required to give security, that the cruise shall be conducted according to instructions and the usages of war; that the rights of neutral nations shall not be violated; and that the captured property shall be brought in for adjudication.
§15. When a prize is brought into a port, the captors make a writing, called libel, stating the facts of the capture, and praying that the property may be condemned; and this paper is filed in the proper court. If it shall be made to appear that the property was taken from the enemy, the court condemns the property as prize, which is then sold, and the proceeds are distributed among the captors.
§16. All prizes, whether taken by a public or private armed vessel, primarily belong to the sovereign; and no person has any interest in a prize, except what he receives from the state: and due proof must in all cases be made before the proper court, that the seizure was lawfully made. In this country, prizes are proved and condemned in a district court of the United States, which, when sitting that purpose, is called a prize court.
§1. A neutral nation is bound to observe a strict impartiality toward the parties at war. If she should aid one party to the injury of the other, she would be liable to be herself treated as an enemy. A loan of money to one of the belligerents, or supplying him with other means of carrying on a war, if done with the view of aiding him in the war, would be a violation of neutrality. But an engagement made in time of peace to furnish a nation a certain number of ships, or troops, or other articles of war, may afterward, in time of war, be fulfilled.
§2. A nation is not bound, however, on the occurrence of a war, to change its customary trade, and to cease supplying a belligerent with articles of trade which such belligerent was wont to receive from her, although the goods may afford him the means of carrying on the war. So if a nation has been accustomed to lend money to another for interest, and the latter should become engaged in war with a third power, the neutral would not break her neutrality if she should continue to lend her money. The wrong in any case lies in the intention to aid one to the detriment of the other.
§3. This rule, it is believed, is universally admitted in cases of belligerents going themselves to a neutral country to make their purchases. But whether a neutral nation is at full liberty to carry the goods in the cases mentioned, is not so certain. A nation in a just war has a right to deprive her enemy of the means of resisting or injuring her, and therefore may lawfully intercept every thing of a warlike nature which a neutral is carrying to such enemy.
§4. Articles which a neutral nation is not allowed to carry to an enemy, are called contraband goods. What these are, it is impossible to say with precision, as some articles may in certain cases be lawfully carried, which would be justly prohibited under other circumstances. Among the articles usually contraband, are arms, ammunition, materials for ship-building, naval stores, horses, and sometimes even provisions.
§5. Contraband goods, when ascertained to be such, are confiscated to the captors as lawful prize. Formerly the vessel also was liable to be condemned and confiscated; but the modern practice, it is said, exempts the ship, unless it belongs to the owner of the contraband articles, or the carrying of them is connected with aggravating circumstances.
§6. One of the rights of a belligerent nation which a neutral is bound to regard, is the right of blockade. Blockade is a blocking up. A war blockade is the stationing of ships of war at the entrance of an enemy's ports, to prevent all vessels from coming out or going in. The object of a blockade is to hinder supplies of arms, ammunition, and provisions from entering, with a view to compel a surrender by hunger and want, without an attack. A neutral vessel attempting to enter or depart, becomes liable to be seized and condemned. Towns and fortresses also may be shut up by posting troops at the avenues.
§7. A simple decree or order declaring a certain coast or country in a state of blockade, does not constitute a blockade. A force must be stationed there, competent to maintain the blockade, and to make it dangerous to enter. And it is necessary that the neutral should have due notice of the blockade, in order to subject his property to condemnation and forfeiture. According to modern usage, if a place is blockaded by sea only, trade with it by a neutral nation may be carried on by inland communication. And a neutral vessel, loaded before the blockade was established, has a right to leave the port with her cargo.
§8. To prevent the conveyance of contraband goods, the law of nations gives a belligerent nation the right of search; that is, the right, in time of war, to search neutral vessels, to ascertain their character, and what articles are on board. A neutral vessel refusing to be searched by a lawful cruiser, would thereby render herself liable to condemnation as a prize. Private merchant vessels only are subject to search; the right does not extend to public ships of war.
§9. The property of an enemy found on board of a neutral vessel, may be seized, if the vessel is beyond the limits of the jurisdiction of the nation to which she belongs; but the vessel is not confiscated; and the master is entitled to freight for the carriage of the goods. The property of neutrals found in an enemy's vessels, is to be restored to the owners.
§10. A neutral is forbidden by the law and practice of nations, to permit a belligerent to arm and equip vessels of war within her forts. Nor may the citizens of a nation fit out any vessel, or enlist, to go beyond the limits of their own country to assist any people in war against another with whom they are at peace.
§11. It is sometimes agreed to suspend hostilities for a time. If the agreement is only for a short period, for the purpose of burying the dead after battle, or for a parley between the hostile generals; or if it regards only some particular place, it is called a cessation or suspension of arms; if for a considerable time, and especially if general, it is called a truce. By a partial truce, hostilities are suspended in certain places, as between a town and the general besieging it; and generals have power to make such truces. By a general truce, hostilities are to cease generally, and in all places, and are made by the governments or sovereigns. Such truces afford opportunities for nations to settle their disputes by negotiation.
§12. A truce binds the contracting parties from the time it is made; but individuals of the nation are not responsible for its violation before they have had due notice of it. And for all prizes taken after the time of its commencement, the government is bound to make restitution. During the cessation of hostilities, each party may, within his own territories, continue his preparations for war, without being charged with a breach of good faith.
§13. War is generally terminated, and peace secured, by treaties of peace. The manner of making treaties has been described. (Chap. XL, §5.) A treaty of peace puts an end to the war, and leaves the contracting parties no right to take up arms for the same cause.
§14. The parties to a treaty of peace are bound by it from the time of its conclusion, which is the day on which it is signed; but, as in the case of a truce, persons are not held responsible for any hostile acts committed before the treaty was known; and their government is bound to order and enforce the restitution of property captured subsequently to the conclusion of the treaty.
§15. War is sometimes terminated by mediation. A friend to both parties, desirous of stopping the destruction of human life, kindly endeavors to reconcile the parties. The friendly sovereign who thus interposes, is called mediator. Many desolating wars might have been early arrested in this way, or wholly prevented, had there always been among friendly powers a disposition to reconcile contending nations.