The Government Class Book Part 23

--1. The seas are regarded as the common highway of nations. The main ocean, for navigation and fis.h.i.+ng, 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 pa.s.sage 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 pa.s.sage 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 emba.s.sadors. 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. Emba.s.sadors are ent.i.tled to the same protection in the countries through which they pa.s.s in going to, and returning from the government to which they are sent. And to insure them a safe pa.s.sage, some governments have given them pa.s.sports to be shown if required. A _pa.s.sport_ is a written license from the authority of a state granting permission or safe conduct for one to pa.s.s through its territory.

Pa.s.sports, 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 emba.s.sador is sent, or the personal character of the emba.s.sador, 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 princ.i.p.al. 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 ent.i.tled to the privilege enjoyed by ministers, but are subject to the laws of the country in which they reside. Their princ.i.p.al 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.

Chapter LXV.

Offensive and Defensive War; just Causes and Objects of War; Reprisals; Alliances in War.

--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 punis.h.i.+ng 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. x.x.xVI, --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 a.s.sist 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 a.s.sistance.

--9. But when the object of the war is hopeless, or when the state under such engagement would, by furnis.h.i.+ng the a.s.sistance, 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 a.s.sistance.

--10. When the alliance is defensive, the treaty binds each party to a.s.sist 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.)

Chapter LXVI.

Declaration of War; its Effect upon the Person and Property of the Enemy's subjects; Stratagems in War; Privateering.

--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 const.i.tution, given to the representatives of the people, for reasons elsewhere stated. (Chap. x.x.xVI, --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 circ.u.mstances, 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 ent.i.tled 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 ent.i.tled 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 s.h.i.+ps 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_.