« ForrigeFortsett »
The right of self-defence is part of the law of our nature, and it is the indispensable duty of civil society to protect its members in the enjoyment of their rights, both of person and property. This is the fundamental principle of the social compact. An injury either done or threatened, to the perfect rights of the nation, or of any of its members, and susceptible of no other redress, is a just cause of
The injury may consist, not only in the direct violation of personal or political rights, but in wrongfully withholding what is due, or in the refusal of a reasonable reparation for injuries committed, or of adequate explanation or security in respect to manifest and impending danger. Grotius condemns the doctrine, that war may be undertaken to weaken the power of a neighbour, under the apprehension that its further increase may render bim dangerous. This would be contrary to justice, unless we were morally certain, not only of a capacity, but of an actual intention to injure us. We ought rather to meet the anticipated danger by a diligent cultivation, and prudent management, of our own resources. We ought to conciliate the respect and good will of other nations, and secure their assistance in case of need, by the benevolence and justice of our conduct. War is not to be resorted to without absolute necessity, nor unless peace would be more dangerous, and more miserable, than war itself. An injury to an individual member of a state, is a just cause of war, if redress be refused, but a nation is not bound to go to war on so slight a foundation ; for it may of itself grant indemnity to the injured party, and if this cannot be done, yet the good of the whole is to be preferred to the welfare of a part. Every milder method of redress is to be tried, before the nation makes an appeal to arms; and this is the sage and moral precept of the writers on natural law.
a Grotius, b. 2. c. 1. and 22 Rutherforth, b. 2. c. 9. Vattel, b. 3. c. 3. sec. 26.
6 Grotius, b. 2. c. 22–25. Rutherforth, b. 2. c. 9.
If the question of right between two powers be in any degree dubious, they ought to forbear proceeding to extremities ; and a nation would be condemned by the impartial voice of mankind, if it voluntarily went to war upon a claim of which it doubted the legality. But, on political subjects, we cannot expect, and are not to look for, the same rigorous demonstration, as in the physical sciences. Policy is a science of calculations and combinations, arising out of times, places, and circumstances, and it cannot be reduced to absolute simplicity and certainty. We must act according to the dictates of a well informed judgment, resting upon
diligent and careful examination of facts, and every pacific mode of redress is to be tried faithfully and perseveringly, before the nation resorts to arms.
If one nation be bound by treaty to afford assistance, in Assistance a case of war between its ally and a third power, the assistance is to be given whenever the casus fæderis occurs; but a question will sometimes arise, whether the government which is to afford the aid, is to judge for itself of the justice of the war on the part of the ally, and to make the right to assistance depend upon its own judgment. Grotius is of opinion, that treaties of that kind do not oblige us to participate in a war, which appears to be manifestly unjust on the part of the ally ; and it is said to be a tacit condition annexed to every treaty made in time of peace, and stipulating to afford succours in time of war, that the stipulation is only to apply to a just war. To give assistance in an unjust war, on the ground of the treaty, would be contracting an obligation to do injustice, and no such contract is valid. But to set up a pretext of this kind, to avoid a positive engagement, is extremely hazardous, and it cannot be done, except in a very clear case, without exposing the nation to the imputation of a breach of public faith. In doubtful cases, the presumption ought rather to be in favour of our ally, and of the justice of his war.
a B. 2. ch. 25.
The doctrine that one nation is not bound to assist another, under any circumstances, in a war clearly unjust, is similar to the principle in the feudal law, to be met with in the Book of Feuds, compiled from the usages of the Lombards, and forming part of the common law of Europe, during the prevalence of the feudal system. A vassal refusing to assist his liege lord in a just war, forfeited his feud. If the justice of the war was even doubtful, or not known affirmatively to be unjust, the vassal was bound to assist ; but, if the war appeared to him to be manifestly unjust, he was uns der no obligation to help his lord to carry it on offensively."
A nation which has agreed to render assistance to another, is not obliged to furnish it when the case is hopeless, or when giving the succours would expose the state itself to imminent danger. Such extreme cases are tacit exceptions to the obligation of the treaty; but the danger must not be slight, remote, or contingent, for this would be to seek a frivolous cause to violate a solemn engagement. In the case of a defensive alliance, the condition of the contract does not call for the assistance, unless the ally be engaged in a defensive war, for in a defensive alliance, the nation engages only to defend its ally, in case he be attacked, and even then we are to inquire whether he be not justly attacked. The defensive alliance applies only to the case of a war first commenced, in point of fact, against the ally, and the power that first declares, or actually begins the war, makes what is deemed, in the conventional law of nations, an offensive war. The treaty of alliance between France and the Unied States, in 1778, was declared, by the second article, to be a defensive alliance, and that declaration gave a character to the whole instrument, and consequently the guaranty, on the part of the United States, of the French possessions in America, could only apply to future defensive wars on the part of France. Upon that ground, the government of this country in 1793, did not consider themselves bound to depart from their neutrality, and to take part with France in the war in which she was then engaged." The war of 1793 was first actually declared and commenced by France, against all the allied powers of Europe, and the nature of the guaranty required us to look only to that fact,
a Feud. lib. 2. tit. 28. sec. 1.
d A war may be defensive in its principles, though offensive in its operation, as where attack is the best mode to repel a menaced invasion, and the casus fæderis of a defensive alliance will apply. He who first renders the application of force necessary is the aggressor, though he may not be the one who first actually applies it, Valtel, b. 3. c. 6. sect. 91. 100. Edin. Review, No. 89. p. 244,5.
In the ancient republics of Greece and Italy, the right of Peclaration declaring war resided with the people, who retained in their collective capacity, the exercise of a large portion of the sovereign power. Among the ancient Germans it belonged also to the popular assemblies, and the power was afterwards continued in the same channel, and actually resided in the Saxon Wittenagemote. But in the monarchies of Europe, which arose upon the ruios of the feudal system, this important prerogative was generally assumed by the king, as appertaining to the duties of the executive department of government. Many publicistsd consider the power as a part of the sovereign authority of the state, of which the legislative department is an essential branch. There are, however, several exceptions to the generality of this position ; for in the limited monarchies of England, France, and Holland, the king alone declares war, and yet the power, to apply an observation of Vattel to the case, is but a slender prerogative of the crown, if the parliaments or legislative bodies of those kingdoms will act independently, since the king cannot raise the money requisite to carry on
a See Pacificus, written in 1793, by Mr. Hamilton, then Secretary of the Treasury, and see the Instructions from the Secretary of State to the American Ministers to France, July 15th, 1797.
b Tacit. de M. G. c. 11.
the war without their consent. The wild and destructive wars of Charles XII. led the states of Sweden to reserve to themselves the right of declaring war; and in the form of government adopted in Sweden in 1772, the right to make war was continued in the same legislative body. This was the provision in those ephemeral constitutions which appeared in Poland and France the latter part of the last century; and as evidence of the force of public opinion on this subject, it may be observed, that in the constitution proposed by Bonaparte, on his reascension of the throne of France in 1815, the right to levy men and money for war, was to rest entirely upon a law, to be proposed to the House of Representatives of the people, and assented to by them. In this country, the power of declaring war, as well as of raising the supplies, is wisely confided to the legislature of the Union, and the presumption is, that nothing short of a strong case deeply affecting our essential rights, and which cannot receive a pacific adjustment, after all reasonable efforts shall have been exhausted, will ever prevail upon Congress to declare war.
It has been usual to precede hostilities by a public declaration communicated to the enemy. It was the custom of the ancient Greeks and Romans, to publish a declaration of the injuries they had received, and to send a herald to the enemy's borders to demand satisfaction, before they actually engaged in war; and invasions, without notice, were not looked upon as lawful. War was declared with religious preparation and solemnity. According to Ulpian, they
a Art. 48. But this free constitution of Sweden was overturned before the end of the year 1772, and a simple despotism established in its stead.
b Potter's Antiquities of Greece, b. 3. c. 7. Livy, b. 1. c. 32. Cic. de Off". b. 1. c. 11.
c Dig. 49. 15. 24. Cic says, that under the Roman kings it was instituted law, that war was unjust and impious, unless declared and proclaimed by the heralds under religious sanction. De Repub. lib, 2. 17.