habited island, or in any other place where there is no established civil society; or de facto, as when the subject members of a civil society will not submit to the judge, or the judge openly refuses to take cognisance of the matters in dispute3. In all these cases Grotius holds that the liberty of Private Warfare still exists. It is not necessary to enquire whether there is, in fact, such an analogy between the cases in which individuals prosecute their Right by force in the absence of a judicial tribunal, and the cases in which a political community prosecutes its Right by force, as to warrant Grotius in classing them under the same generic head. It will be sufficient to bear in mind the more extensive sense in which Grotius uses the term War, and to remember that the ideas, which it expresses in his system, correspond to that more extensive use of the term. This circumstance will account for the conclusions of Grotius being occasionally at variance with those of other writers, who limit the term War to the contention of communities which acknowledge no political superior. § 25. It may well be the case that Grotius, in maintaining the liberty of Private Warfare, and in seeking to subject it to rules analogous to those which should govern Public War, was in advance of the practice of the age in which he lived, and of which he speaks in strong terms of abhorrence, as exhibiting "a license in making war, of which even barbarian nations might be ashamed, recourse being had to arms for slight reasons, or for no reasons at all; which being once taken up, there was no longer any reverence for Right, either divine or human, just as if men had been let loose to commit all sorts of De Jure Belli et Pacis, L. I. c. 3. § 11. crime without restraint." But the Universal Society of Nations has happily made considerable progress since the age of Grotius, and in the interval much, which was repugnant to its true nature, has been slowly but steadily eliminated from its practice. If the case may still perchance occur, in which individual men have no other resource, in order to prevent injury or grievous loss being inflicted upon them by others, than to use force, such use of force is not held to give rise to a State of War either between the parties themselves, or the independent political communities of which they are members. The acts of the individuals must be authorised by the Sovereign power of the States, of which they are subjects or citizens, before they can be held to give rise to a state of War. In vain would independent political communities agree that all disputes between their respective members shall be settled by amicable discussion, if individuals were at liberty to contest with one another their mutual rights by force. War, therefore, in the sense in which its rights and obligations are the subject of Public Law, has no place between Albericus private persons. "Bellum est armorum publicorum justa contentio." The employment of force in the prosecution of Right within the territory of a Nation may be a lawful act on the part of individuals, if it be sanctioned by the Law of the territory: if, on the other hand, it be not so sanctioned, it will be a trespass against the peace of the Nation to which the territory belongs, and will be punishable as such by the Sovereign Authority of the State, without any disturbance of the peace of other Nations. The employment of force, on the other hand, in the prosecution of Right, in a place which does not belong Gentilis. 4 Albericus Gentilis de Jure Belli, L. I. c. II. 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 Peers. In the absence of all other means of adjust ment, every Nation falls back upon the united force of all its members, and endeavours to enforce what it conceives to be Right, by the exertion of that force against the wrong-doer. War is thus undertaken by a Nation from necessity, when Right cannot be obtained by a judicial proceeding. "Ex necessitate introductum bellum, quæ est quia inter summos principes populosque liberos judicium civile et inermis disceptatio esse non potest, qui judicem scilicet non habent et superiorem, unde meritoque summi sunt, et publicorum appellationem merentur, cum minores omnes loco privatorum sunt5.” 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. |