The Government Class Book by Andrew W. Young

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Sec.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.

Sec.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.

Sec.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.

Chapter LXIV.

The Jurisdiction of Nations; their mutual Rights and Obligations; the
Rights of Embassadors, Ministers, &c.

Sec.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.

Sec.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.

Sec.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, Sec.15.)

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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, Sec.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.

Sec.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_. (Sec.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_.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.6. One of the means by which satisfaction is sought without making war,
is that of _reprisals_. (Chap. XXXVI, Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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. (Sec.1.)

Chapter LXVI.

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

Sec.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, Sec.3.)

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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_.

Chapter LXVII.

Rights and Duties of Neutral Nations; Contraband Goods; Blockade; Right
of Search; Safe Conducts and Passports; Truces; Treaties of Peace.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

Sec.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.

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