exclusively to any Nation, but to which all Nations have an equal right of access, will only be a lawful act on the part of individuals, if it be authorised by the common Law of Nations; for no Nation can claim of Right to enforce its territorial Law, to the exclusion of all other Law, in a place over which it has not an exclusive right of sovereignty. In a place therefore which is publici juris, if the employment of force by private persons be not authorised by the public Law of Nations, it will be a trespass against the general peace of Nations, and will be justiciable as such by all Nations. In order therefore that the employment of force by individuals beyond the limits of the territory of the Nation, of which they are citizens, should have any countenance of Public Law, their acts must be clothed with a certain public character, which can be imparted to them only by the authority of the State of which they are citizens. The use of force under such authority by private persons may justly be regarded as the act of the Nation itself; and the parties against whom that force is exercised will have the right of treating it as an act of War, which they may resent if they please, according to the rules which govern the disputes of Nations by arms. necessary § 26. War then may be regarded as an alternative War a state of international relations, which supersedes the alternative. relations of Peace, whenever Nations prosecute their Right by force. It is impossible that differences should not arise between Nations upon questions of Right amidst the complicated relations of international society; and whenever such differences arise, the particular question of Right, which is at the foundation of them, must be decided in favour of the one or the other Nation, in order that the controversy may be appeased, and the interchange of good offices between them, which is the true end of international society, may be resumed. In every civil society, tribunals have been set up, before which disputes between individual citizens as to their respective rights may be submitted to the arbitrament of reason; and if the party who has been adjudged before any such tribunal to have done wrong, should thereupon not redress such wrong, the united force of all the members of the civil society to which he belongs, which is termed the Sovereign Power of the civil society by reason of the authority, which directs the action of the united force of all its members, being concentrated in the person of a supreme Chief, will compel the wrong-doer to make redress. But the obligations of Natural Society which are enforced by the Sovereign Power of a State in the case of Civil Society, although they are equally binding in International Society, cannot be enforced by any analogous supreme authority. When a question of Right is in controversy between Nations, there is no supreme Chief to whose hands the direction of the united force of all Nations has been intrusted, and who would be enabled thereby to enforce the decree of any tribunal, to which the question of controverted Right might be referred. But the differences, to which the question of disputed Right will have given origin, must suspend of necessity the peaceable intercourse of Nations; for Nations, in respect of their intercourse, are Peers or Equals; and no Nation can continue to hold intercourse with another Nation under the sense of that inequality, which is implied by submitting voluntarily to Wrong. Hence it becomes a requirement of International Society, that every question of Right between Nations should be adjusted, so as not to derogate from their equality as Peers. In the absence of all other means of adjust ment, every Nation falls back upon the united force Bacon's War. § 27. Lord Bacon has adopted a similar view of Lord the nature of what is rightly termed War, when he view of speaks of Wars as being " the highest trials of Right, when Princes and States, that acknowledge no superior upon earth, shall put themselves upon the justice. of God for the deciding of their controversies by such success, as it shall please Him to give on either side. And as in the process of particular pleas between private men all things ought to be ordered by the rules of Civil Laws, so in the proceeding of War nothing ought to be done against the Law of Nature or the Law of Honour." In other words, nothing should be attempted in war which is contrary to the practice of civilized nations, or contrary to good faith. That there is a practice of Nations in matters of war to which all Nations are expected to conform themselves, is an axiom of those tribunals which take 5 Albericus Gentilis de Jure Belli Comment. I., who says further, "Et hinc fit, ut bellum non sit, ubi ea cessat necessitas ad Martem judicem recurrendi; cessat autem semper, si principes inferiores præliantur, vel populi subditi; immo crimen læsæ ma jestatis patrant, si arma gesse- 6 Observations on a Libel, 7 The Hurtige Hane 3 Ch. Rob. p. 326. Grotius. Private Peace in with Public War. special cognisance of the incidents of international life in time of war. "Let it be granted," says Grotius, "that Laws must be silent in the midst of arms, provided they are only those laws which are civil and judicial, and proper for times of war; but not those which are of perpetual obligation, and are equally suited to all times: for it was excellently said by Dion Prusæensis, "that between enemies written law, that is, civil laws, are not in force; but unwritten laws are in force, that is, such laws as Nature dictates, or the consent of Nations has established." § 28. Private War being thus inconsistent with consistent Public Peace, it follows that Private Peace is equally inconsistent with Public War. Peace may be defined to be that state or condition of things in which men adjust their differences on questions of Right by Reason. It would be an error to suppose that the absence of all differences on the subject of Right is the true test of that state or condition of international relations, which is termed Peace, as contrasted with War. Differences as to mutual Right must arise in the most elementary stages of human society; for the fundamental condition of Natural Society is, that each individual member of a community shall do for the other members everything which their welfare requires, and which he can perform, without neglecting the duty which he owes to himself. Social Right accordingly consists in the correct adjustment of the balance of duty between a man and his neighbour, in other words, between men living in society. When men unite themselves in Civil Society, the adjustment of the balance of duty between a man and his neighbour, when they differ as to their respective obligations, is ascertained by 8 De Jure Belli et Pacis, Prolegomena, § 27. discussion before a third party, who is authorised by the Sovereign power of the civil community to decide all differences between its members, and may invoke the aid of the whole community to carry his decision into effect. When Nations, however, unite themselves in International Society, the adjustment of the balance of duty between them respectively, when they differ, cannot be effected by discussion before a common judge; for the community of Nations has never yet consented to authorise any international tribunal to decide such differences, and to invoke the aid of the whole community to carry its decisions into effect. In the absence of any common judge or arbiter between the members of different Nations, a citizen of one Nation, who conceives himself wrongfully prejudiced by the conduct of the citizen of another Nation, has no other resource than to invoke the aid of the entire Nation, of which he is a member, to enforce an adjustment of the balance of duty between him and the wrong-doer. The only mode, whereby that adjustment can be effected against the will of the wrong-doer, is by setting in motion against the Nation itself, of which the wrong-doer is a member, the united force of all the members of the political community of which the party wronged is a member, in order to constrain the former to exert its sovereign power over the wrong-doer, and compel him to make redress. It is the exercise of the united force of all the members of an independent political community for this object, which is properly termed War in the juridical sense of the term. "Cum sint duo genera decertandi, unum per disceptationem, alterum per vim, cumque illud proprium sit hominis, hoc belluarum, confugiendum est ad posterius, si uti non licet superiori. Quare suscipienda quidem bella sunt ob eam causam, ut sine injuria in pace. |