PEACE is the reverse of war: it is that desirable state in which every one quietly enjoys his rights, or, if controverted, amicably discusses them by force of argument. Hobbes has had the boldness to assert, that war is the natural state of man. But if, by "the natural state of man," we understand (as reason requires that we should) that state to which he is destined and called by his nature, peace should rather be termed his natural state. For, it is the part of a rational being to terminate his differences by rational methods; whereas, it is the characteristic of the brute creation to decide theirs by force.1 Man, as we have already observed (Prelim. § 10), alone and destitute of succours, would necessarily be a very wretched creature. He stands in need of the intercourse and assistance of his species, in order to enjoy the sweets of life, to develop his faculties, and live in a manner suitable to his nature. Now, it is in peace alone that all these advantages are to be found: it is in peace that men respect, assist, and love each other: nor would they ever depart from that happy state, if they were not hurried on by the impetuosity of their passions, and blinded by the gross deceptions of self-love. What little we have said of the effects will be sufficient to give some idea of its various calamities; and it is an unfortunate circumstance for the human race, that the injustice of unprincipled men should so often render it inevitable.
Nations who are really impressed with sentiments of humanity, — who seriously attend to their duty, and are acquainted with their true and substantial interests, — will never seek to promote their own advantage at the expense and detriment of other nations: however intent they may be on their own happiness, they will ever be careful to combine it with that of others, and with justice and equity. Thus disposed, they will necessarily cultivate peace. If they do not live together in peace, how can they perform those mutual and sacred duties which nature enjoins them? And this state is found to be no less necessary to their happiness than to the discharge of their duties. Thus, the law of nature every way obliges them to seek and cultivate peace. That divine law has no other end in view than the welfare of mankind: to that object all its rules and all its precepts lend: they are alt deducible from this principle, that men should seek their own felicity; and morality is no more than the art of acquiring happiness. As this is true of individuals, it is equally so of nations, as must appear evident to any one who will but take the trouble of reflecting on what we have said of their common and reciprocal duties, in the first chapter of the second book.
This obligation of cultivating peace binds the sovereign by a double tie. He owes this attention to his people, on whom war would pour a torrent of evils; and he owes it in the most strict and indispensable manner, since it is solely for the advantage and welfare of the nation that he is intrusted with the government. (Book I. § 39.) He owes the same attention to foreign nations, whose happiness likewise is disturbed by war. The nation's duty in this respect has been shown in the preceding chapter; and the sovereign, being invested with the public authority, is at the same time charged with all the duties of the society, or body of the nation. (Book I. § 41.)
The nation or the sovereign ought not only to refrain, on their own part, from disturbing that peace which is so salutary to mankind: they are, moreover, bound to promote it as far as lies in their power, — to prevent others from breaking it without necessity, and to inspire them with the love of justice, equity, and public tranquillity, — in a word, with the love of peace. It is one of the best offices a sovereign can render to nations, and to the whole universe. What a glorious and amiable character is that of peace-maker! Were a powerful prince thoroughly acquainted with the advantages attending it, — were he to conceive what pure and effulgent glory he may derive from that endearing character, together with the gratitude, the love, the veneration, and the confidence of nations, — did he know what it is to reign over the hearts of men, — he would wish thus to become the benefactor, the friend, the father of mankind; and in being so, he would find infinitely more delight than in the most splendid conquests. Augustus, shutting the temple of Janus, giving peace to the universe, and adjusting the disputes of kings and nations, — Augustus, at that moment, appears the greatest of mortals, and, as it were, a god upon earth.
But those disturbers of the public peace, — those scourges of the earth, who, fired by a lawless thirst of power, or impelled by the pride and ferocity of their disposition, snatch up arms without justice or reason, and sport with the quiet of mankind and the blood of their subjects, — those monstrous heroes, though almost deified by the foolish admiration of the vulgar, are in effect the most cruel enemies of the human race, and ought to be treated as such. Experience shows what a train of calamities war entails even upon nations that are not immediately engaged in it. War disturbs commerce, destroys the subsistence of mankind, raises the price of all the most necessary articles, spreads just alarms, and obliges all nations to be upon their guard, and to keep up an armed force. He, therefore, who without just cause breaks the general peace, unavoidably does an injury even to those nations which are not the objects of his arms; and by his pernicious example he essentially attacks the happiness and safety of every nation upon earth. He gives them a right to join in a general confederacy for the purpose of repressing and chastising him, and depriving him of a power which he so enormously abuses. What evils does he not bring on his own nation, lavishing her blood to gratify his inordinate passions, and exposing her to the resentment of a host of enemies! A famous minister of the last century has justly merited the indignation of his country, by involving her in unjust or unnecessary wars. If by his abilities and indefatigable application, he procured her distinguished successes in the field of battle, he drew on her, at least for a time, the execration of all Europe.
The love of peace should equally prevent us from embarking in a war without necessity, and from persevering in it after the necessity has ceased to exist. When a sovereign has been compelled to take up arms for just and important reasons, he may carry on the operations of war till he has attained its lawful end, which is, to procure justice and safety. (Book III § 28.)
If the cause be dubious, the just end of war can only be to bring the enemy to an equitable compromise (Book III. § 38); and consequently the war must not be continued beyond that point. The moment our enemy proposes or consents to such compromise, it is our duty to desist from hostilities.
But if we have to do with a perfidious enemy, it would be imprudent to trust either his words or his oaths. In sucli case, justice allows and prudence requires that we should avail ourselves of a successful war, and follow up our advantages, till we have humbled a dangerous and excessive power, or compelled the enemy to give us sufficient security for the time to come.
Finally, if the enemy obstinately rejects equitable conditions, he himself forces us to continue our progress till we have obtained a complete and decisive victory, by which he is absolutely reduced and subjected. The use to be made of victory has been shown above. (Book III. Chap. VIII., IX., XIII.)
When one of the parties is reduced to sue for peace, or both are weary of the war, then thoughts of an accommodation are entertained, and the conditions are agreed on. Thus peace steps in and puts a period to the war.
The general and necessary effects of peace are the reconciliation of enemies and the cessation of hostilities on both sides. It restores the two nations to their natural state.
1. Nam cum sint duo genera decertandi, unum per disceptationem, alterum per vim, — cumque illud proprium sit hominis, hoc belluarum, — confuglendum est ad posterius, si ut non licet superiore. Cicero, de Offic. lib. i. cap. 11.
WHEN the belligerent powers have agreed to lay down their arms, the agreement or contract in which they stipulate the conditions of peace, and regulate the manner in which it is to be restored and supported, is called the treaty of peace.
The same power who has the right of making war, of determining on it, of declaring it, and of directing its operations, has naturally that likewise of making and concluding the treaty of peace.(189) These two powers are connected together, and the latter naturally follows from the former. If the ruler of the state is empowered to judge of the causes and reasons for which war is to be undertaken, — of the time and circumstances proper for commencing it, — of the manner in which it is to be supported and carried on, — it is therefore his province also to set bounds to its progress, to point out the time when it shall be discontinued, and to conclude a peace. But this power does not necessarily include that of granting or accepting whatever conditions he pleases, with a view to peace. Though the state has intrusted to the prudence of her ruler the general care of determining on war and peace, yet she may have limited his power in many particulars by the fundamental laws. Thus, Francis the First, king of France, had the absolute disposal of war and peace: and yet the assembly of Cognac declared that he had no authority to alienate any part of the kingdom by a treaty of peace. (See Book I. § 265.)
A nation that has the free disposal of her domestic affairs, and the form of her government, may intrust a single person, or an assembly, with the power of making peace, although she has not given them that of making war. Of this we have an instance in Sweden, where, since the death of Charles XII., the king cannot declare war without the consent of the states assembled in diet; but he may make peace in conjunction with the senate. It is less dangerous for a nation to intrust her rulers with this latter power, than with the former. She may reasonably expect that they will not make peace till it suits with the interest of the state. But their passions, their own interest, their private views, too often influence their resolutions where there is question of undertaking a war. Besides, it must be a very dangerous peace, indeed, that is not preferable to war, whereas, on the other hand, to exchange peace for war is always very hazardous.
When a prince, who is possessed only of limited authority, has a power to make peace, as he cannot of himself grant whatever conditions he pleases, it is incumbent on those who wish to treat with him on sure grounds, to require that the treaty of peace be ratified by the nation, or by those who are empowered to perform the stipulations contained in it. If, for instance, any potentate, in negotiating a treaty of peace with Sweden, requires a defensive alliance or guarantee as the condition, this stipulation will not be valid, unless approved and accepted by the diet, who alone have the power of carrying it into effect. The kings of England are authorized to conclude treaties of peace and alliance; but they cannot, by those treaties, alienate any of the possessions of the crown without the consent of parliament. Neither can they, without the concurrence of that body, raise any money in the kingdom; wherefore, whenever they conclude any subsidiary treaty, it is their constant rule to lay it before the parliament, in order that they may be certain of the concurrence of that assembly to enable them to make good their engagements. When the emperor Charles V. required of Francis the First, his prisoner, such conditions as that king could not grant without consent of the nation, he should have detained him till the states-general of France had ratified the treaty of Madrid, and Burgundy had acquiesced in it: thus he would not have lost the fruits of his victory by an oversight which appears very surprising in a prince of his abilities.
We shall not repeat here what we have said on a former occasion concerning the alienation of a part of the state (Book I. §§ 263, &c.) or of the whole state. (Ibid. §§ 68, &c.) We shall therefore content ourselves with observing, that, in case of a pressing necessity, such as is produced by the events of an unfortunate war, the alienations made by the prince, in order to save the remainder of the state, are considered as approved and ratified by the mere silence of the nation, when she has not, in the form of her government, retained some easy and ordinary method of giving her express consent, and has lodged an absolute power in the prince's hands. The states-general are abolished in France by disuse, and by the tacit consent of the nation. Whenever, therefore, that kingdom is reduced to any calamitous exigency, it belongs to the king alone to determine by what sacrifices he may purchase peace: and his enemies will treat with him on a sure footing. It would be a vain plea on the part of the people, to say that it was only through fear they acquiesced in the abolition of the states-general. The fact is, that they did acquiesce, and thereby suffered the king to acquire all the powers necessary for contracting with foreign states in the name of the nation. In every state there must necessarily be some power with which other nations may treat on secure grounds. A certain historian1 says, that, "by the fundamental laws, the kings of France cannot, to the prejudice of their successors, renounce any of their rights, by any treaty, whether voluntary or compulsory." The fundamental laws may indeed withhold from the king the power of alienating, without the nation's consent, what belongs to the state; but they cannot invalidate an alienation or renunciation made with that consent.2
And if the nation has permitted matters to proceed to such lengths that she now has no longer any means of expressly declaring her consent, her silence alone, on such occasions, is in reality a tacit consent. Otherwise there would be no possibility of treating on sure grounds with such a state; and her pretending thus beforehand to invalidate all future treaties would be an infringement of the law of nations, which ordains that all states should retain the means of treating with each other (Book I, § 262), and should observe their treaties. (Book II. §§ 163, 269, &c.)
It is to be observed, however, that in our examination whether the consent of the nation be requisite for alienating any part of the state, we mean such parts as are still in the nation's possession, and not those which have fallen into the enemy's hands during the course of the war: for, as these latter are no longer possessed by the nation, it is the sovereign alone, if invested with the full and absolute administration of the government, and with the power of making war and peace, — it is he alone, I say, who is to judge whether it be expedient to relinquish those parts of the state, or to continue the war for the recovery of them. And even though it should be pretended that he cannot by his own single authority make any valid alienation of them, — he has, nevertheless, according to our supposition, that is, if invested with full and absolute power, — he has, I say, a right to promise that the nation shall never again take up arms for the recovery of those lands, towns, or provinces, which he relinquishes: and this suffices for securing the quiet possession of them to the enemy into whose hands they are fallen.
The necessity of making peace authorizes the sovereign to dispose of the property of individuals; and the eminent domain gives him a right to do it (Book I. § 244). He may even, to a certain degree, dispose of their persons, by virtue of the power which he has over all his subjects. But as it is for the public advantage that he thus disposes of them, the state is bound to indemnify the citizens who are sufferers by the transaction. (Ibid.)
Every impediment by which the prince is disabled from administering the affairs of government, undoubtedly deprives him of the power of making peace. Thus a king cannot make a treaty of peace during his minority, or while in a state of mental derangement: this assertion does not stand in need of any proof: but the question is, whether a king can conclude a peace while he is a prisoner of war, and whether the treaty thus made be valid? Some celebrated authors3 here draw a distinction between a monarch whose kingdom is patrimonial, and another who has only the usufructus of his dominions. We think we have overthrown that false and dangerous idea of a patrimonial kingdom (Book I. §§ 68, &c.), and evidently shown that the notion ought not to be extended beyond the bare power with which a sovereign is sometimes intrusted, of nominating his successor, of appointing a new prince to rule over the state, and dismembering some parts of it, if he thinks it expedient; — the whole, however, to be uniformly done for the good of the nation, and with a view to her greater advantage. Every legitimate government, whatever it be, is established solely for the good and welfare of the state. This incontestable principle being once laid down, the making of peace is no longer the peculiar province of the king; it belongs to the nation. Now it is certain that a captive prince cannot administer the government, or attend to the management of public affairs. How shall he who is not free command a nation? How can he govern it in such manner as best to promote the advantage of the people, and the public welfare? He does not, indeed, forfeit his rights; but his captivity deprives him of the power of exercising them, as he is not in a condition to direct the use of them to its proper and legitimate end. He stands in the same predicament as a king in his minority, or labouring under a derangement of his mental faculties. In such circumstances, it is necessary that the person or persons whom the laws of the state designate for the regency should assume the reins of government. To them it belongs to treat of peace, to settle the terms on which it shall be made, and to bring it to a conclusion, in conformity to the laws.
The captive sovereign may himself negotiate the peace, and promise what personally depends on him: but the treaty does not become obligatory on the nation till ratified by herself, or by those who are invested with the public authority during the prince's captivity, or, finally, by the sovereign himself after his release.
But, if it is a duty incumbent on the state to use her best efforts for procuring the release of the most inconsiderable of her citizens who has lost his liberty in the public cause, the obligation is much stronger in the case of her sovereign, whose cares, attention, and labours are devoted to the common safety and welfare. It was in fighting for his people that the prince, who has been made prisoner, fell into that situation, which, to a person of his exalted rank, must be wretched in the extreme: and shall that very people hesitate to deliver him at the expense of the greatest sacrifices? On so melancholy an occasion, they should not demur at any thing short of the very existence of the state. But, in every exigency, the safety of the people is the supreme law; and, in so severe an extremity, a generous prince will imitate the example of Regulus, That heroic citizen, being sent back to Rome on his parole, dissuaded the Romans from purchasing his release by an inglorious treaty, though he was not ignorant of the tortures prepared for him by the cruelty of the Carthaginians.4
When an unjust conqueror, or any other usurper, has invaded the kingdom, he becomes possessed of all the powers of government when once the people have submitted to him, and, by a voluntary homage, acknowledged him as their sovereign. Other states, as having no right to intermeddle with the domestic concerns of that nation, or to interfere in her government, are bound to abide by her decision, and to look no farther than the circumstances of actual possession. They may, therefore, broach and conclude a treaty of peace with the usurper. They do not thereby infringe the right of the lawful sovereign: it is not their business to examine and judge of that right: they leave it as it is, and only look to the possession in all the affairs they have to transact with that kingdom, pursuant to their own rights and those of the nation whose sovereignty is contested. But this rule does not preclude them from espousing the quarrel of the dethroned monarch, and assisting him, if he appears to have justice on his side: they then declare themselves enemies of the nation which has acknowledged his rival, as, when two different states are at war, they are at liberty to assist either party whose pretensions appear to be best founded.
The principal in the war, the sovereign in whose name it has been carried on, cannot justly make a peace without including his allies, — I mean those who have given him assistance without directly taking part in the war. This precaution is necessary, in order to secure them from the resentment of live enemy: for though the latter has no right to take offence against his adversary's allies, whose engagements were purely of a defensive nature, and who have done nothing more than faithfully execute their treaties (Book III. § 101) — yet it too frequently happens that the conduct of men is influenced by their passions rather than by justice and reason. If the alliance was not of prior date to the commencement of the war, and was formed with a view to that very war, — although these new allies do not engage in the contest with all their force, nor directly as principals, they nevertheless give to the prince against whom they have joined, just cause to treat them as enemies. The sovereign, therefore, whom they have assisted, must not omit including them in the peace.
But the treaty concluded by the principal is no farther obligatory on his allies than as they are willing to accede to it, unless they have given him full power to treat for them. By including them in his treaty, he only acquires a right, with respect to his reconciled enemy, of insisting that he shall not attack those allies on account of the succours they have furnished against him, — that he shall not molest them, but shall live in peace with them as if nothing had happened.
Sovereigns who have associated in a war, — all those who have directly taken part in it, — are respectively to make their treaties of peace, each for himself. Such was the mode adopted at Nimeguen, at Ryswick, and at Utrecht. But the alliance obliges them to treat in concert. To determine in what cases an associate may detach himself from the alliance, and make a separate peace, is a question which we have examined in treating of associations in war (Book III. Chap. VI.), and of alliances in general (Book II. Chap. XII. and XV.).
It frequently happens that two nations, though equally tired of the war, do nevertheless continue it merely from a fear of making the first advances to an accommodation, as these may be imputed to weakness; or they persist in it from animosity, and contrary to their real interests. On such occasions, some common friends of the parties effectually interpose, by offering themselves as mediators. There cannot be a more beneficent office, and more becoming a great prince, than that of reconciling two nations at war, and thus putting a stop to the effusion of human blood: it is the indispensable duty of those who have the means of performing it with success. This is the only reflection we shall here make on a subject we have already discussed (Book II. § 328).
A treaty of peace can be no more than a compromise. Were the rules of strict and rigid justice to be observed in it, so that each party should precisely receive every thing to which he has a just title, it would be impossible ever to make a peace. First, with regard to the very subject which occasioned the war, one of the parties would be under a necessity of acknowledging himself in the wrong, and condemning hie own just pretensions: which he will hardly do, unless reduced to the last extremity. But if he owns the injustice of his cause, he must at the same time condemn every measure he has pursued in support of it: he must restore what he has unjustly taken, must reimburse the expenses of the war, and repair the damages. And how can a just estimate of all the damages be formed: What price can be set on all the blood that has been shed, the loss of such a number of citizens, and the ruin of families! Nor is this all. Strict justice would further demand, that the author of an unjust war should suffer a penalty proportioned to the injuries for which he owes satisfaction, and such as might insure the future safety of him whom he attacked. How shall the nature of that penalty be determined, and the degree of it be precisely regulated? In fine, even he who had justice on his side may have transgressed the bounds of justifiable self-defence, and been guilty of improper excesses in the prosecution of a war whose object was originally lawful: here then are so many wrongs, of which strict justice would demand reparation. He may have made conquests and taken booty beyond the value of his claim. Who shall make an exact calculation, a just estimate of this? Since, therefore, it would be dreadful to perpetuate the war, or to pursue it to the utter ruin of one of the parties, — and since, however just the cause in which we are engaged, we must at length turn our thoughts towards the restoration of peace, and ought to direct all our measures to the attainment of that salutary object, — no other expedient remains than that of coming to a compromise respecting all claims and grievances on both sides, and putting an end to all disputes by a convention as fair and equitable as circumstances will admit of. In such conventions, no decision is pronounced on the original cause of the war, or on those controversies to which the various acts of hostility might give rise; nor is either of the parties condemned as unjust, — a condemnation to which few princes would submit; — but, a simple agreement is formed, which determines what equivalent each party shall receive in extinction of all his pretensions.
The effect of the treaty of peace is to put an end to the war, and to abolish the subject of it. It leaves the contracting parties no right to commit any acts of hostility on account either of the subject itself which had given rise to the war, or, of any thing that was done during its continuance: wherefore they cannot lawfully take up arms again for the same subject. Accordingly, in such treaties, the contracting parties reciprocally engage to preserve perpetual peace: which is not to be understood as if they promised never to make war on each other for any cause whatever. The peace in question relates to the war which it terminates: and it is in reality perpetual, inasmuch as it does not allow them to revive the same war, by taking up arms again for the same subject which had originally given birth to it.
A special compromise, however, only extinguishes the particular means to which it relates, and does not preclude any subsequent pretensions to the object itself, on other grounds. Care is therefore usually taken to require a general compromise, which shall embrace not only the existing controversy, but the very thing itself which is the subject of that controversy: stipulation is made for a general renunciation of all pretensions whatever to the thing in question: and thus, although the party renouncing might in the sequel be able to demonstrate by new reasons that the thing did really belong to him, his claim would not be admitted.
An amnesty is a perfect oblivion of the past; and the end of peace being to extinguish all subjects of discord, this should be the leading article of the treaty: and accordingly, such is at present the constant practice. But though the treaty should be wholly silent on this head, the amnesty, by the very nature of the peace, is necessarily implied in it.
As each of the belligerent powers maintains that he has justice on his side, — and as their pretensions are not liable to be judged by others (Book III. § 188), — whatever state things happen to be in at the time of the treaty is to be considered as their legitimate state; and if the parties intend to make any change in it, they must expressly specify it in the treaty. Consequently all things not mentioned in the treaty are to remain on the same footing on which they stand at the period when it is concluded. This is also a consequence of the promised amnesty. All damages caused during the war are likewise buried in oblivion; and no action can be brought for those of which the treaty does not stipulate the reparation: they are considered as having never happened.
But the effect of the compromise or amnesty cannot be extended to things which have no relation to the war that is terminated by the treaty. Thus, claims founded on a debt, or on an injury which had been done prior to the war, but which made no part of the reasons for undertaking it, still stand on their former footing, and are not abolished by the treaty, unless it be expressly extended to the extinction of every claim whatever. The case is the same with debts contracted during the war, but for causes which have no relation to it, — or with injuries done during its continuance, but which have no connection with the state of warfare.
Debts contracted with individuals, or injuries which they may have received from any other quarter, without relation to the war, are likewise not abolished by the compromise and amnesty, as these solely relate to their own particular object, — that is to say, to the war, its causes, and its effects. Thus, if two subjects of the belligerent powers make a contract together in a neutral country, or if the one there receives an injury from the other, — the performance of the contract, or the reparation of the injury and damage, may be prosecuted after the conclusion of the treaty of peace.
Finally, if the treaty expresses that all things shall be restored to the state in which they were before the war, this clause is understood to relate only to immovable possessions, and cannot be extended to movables, or booty, which immediately becomes the property of the captors, and is looked on as relinquished by the former owners on account of the difficulty of recognising it, and the little hope they entertain of ever recovering it.
When the last-made treaty mentions and confirms other treaties of prior date, these constitute a part of the new one, no less than if they were literally transcribed and included in it: and any new articles relating to former conventions are to be interpreted according to the rules which we have laid down in a preceding part of this work (Book II. Chap. XVII. and particularly § 286).
(188) Upon the subject of treaties in general, and their construction, see ante, book ii. ch. xii. p. 192-274. Whilst examining the sections of Vattel relative to treaties, it will be found advisable to read the modern treaties, which are collected in Chitty's Commercial Law, latter part of vol. 2. — C.
(189) Ante, 292-2; and see Hoop, 1 Rob. Rep. 196, Id.; 1 Chitty's Com. L. 378. — C.
1. The abbé de Choisi, Hist. de Charles V. p. 492.
2. The renunciation made by Anne of Austria, consort of Louis the Thirteenth, was good and valid, because it was confirmed by the general assembly of the Cortes, and registered in all the offices. The case was otherwise with that made by Anna Theresa, which was not sanctioned by those formalities — consequently, not stamped with the national approbation, and the character of a law of the state. The cardinals who examined this affair by order of the pope, whom Charles II. had consulted, paid no regard to Maria Theresa's renunciation, as not deeming it of sufficient force to invalidate the laws of the country, and to supersede the established custom. — Memoirs of M. de St. Philippe, vol. i. p. 29. — Ed. A.D. 1797.
3. See Wolf. Jus Gent. § 982.
4. See Tit. Liv. Epitom. lib. xviii. and other historians.
A TREATY of peace becomes obligatory on the contracting parties from the moment of its conclusion, — the moment it has passed through all the necessary forms: and they are bound to have it carried into execution without delay.1 From that instant all hostilities must cease, unless a particular day has been specified for the commencement of the peace. But this treaty does not bind the subjects until it is duly notified to them. The case is the same in this instance as in that of a truce (Book II. § 239). If it should happen that military men, acting within the extent of their functions and pursuant to the rules of their duty, commit any acts of hostility before they have authentic information of the treaty of peace, it is a misfortune, for which they are not punishable: but the sovereign, on whom the treaty of peace is already obligatory, is bound to order and enforce the restitution of all captures made subsequent to its conclusion: he has no right whatever to retain them.
And in order to prevent those unhappy accidents, by which many innocent persons may lose their lives, public notice of the peace is to be given without delay, at least to the troops. But at present, as the body of the people cannot of themselves undertake any act of hostility, and do not personally engage in the war, the solemn proclamation of the peace may be deferred, provided that care be taken to put a stop to all hostilities: which is easily done by means of the generals who direct the operations, or by proclaiming an armistice at the head of the armies. The peace of 1735, between the emperor and France, was not proclaimed till long after. The proclamation was postponed till the treaty was digested at leisure, — the most important points having been already adjusted in the preliminaries. The publication of the peace replaces the two nations in the state they were in before the war. It again opens a free intercourse between them, and reinstates the subjects on both sides in the enjoyment of those mutual privileges which the state of war had suspended. On the publication, the treaty becomes a law to the subjects: and they are thenceforward bound to conform to the regulations stipulated therein. If, for instance, the treaty imports that one of the two nations shall abstain from a particular branch of commerce, every subject of that nation, from the time of the treaty's being made public, is obliged to renounce that commerce.
When no particular time has been assigned for the execution of the treaty, and the performance of the several articles, common sense dictates that every point should be carried into effect as soon as possible: and it was, no doubt, in this light that the contracting parties understood the matter. The faith of treaties equally forbids all neglect, tardiness, and studied delays, in the execution of them.
But in this affair, as in every other, a legitimate excuse, founded on a real and insurmountable obstacle, is to be admitted; for nobody is bound to perform impossibilities. The obstacle, when it does not arise from any fault on the side of the promising party, vacates a promise which cannot be made good by an equivalent, and of which the performance cannot be deferred to another time. If the promise can be fulfilled on another occasion, a suitable prolongation of the time must be allowed. Suppose one of the contracting nations has, by the treaty of peace, promised the other a body of auxiliary troops: she will not be bound to furnish them, if she happen to stand in urgent need of them for her own defence. Suppose she has promised a certain yearly quantity of corn: it cannot be demanded at a time when she herself labours under a scarcity of provisions; but, on the return of plenty, she is bound to make good the quantity in arrear, if required.
It is further held as a maxim, that the promiser is absolved from his promise, when, after he has made his preparations for performing it according to the tenor of his engagement, he is prevented from fulfilling it, by the party himself to whom it was made. The promisee is deemed to dispense with the fulfilment of a promise of which he himself obstructs the execution. Let us therefore add, that if he who had promised a thing by a treaty of peace was ready to perform it at the time agreed on, or immediately and at a proper time if there was no fixed term, — and the other party would not admit of it, the promisor is discharged from his promise: for the promisee, not having reserved to himself a right to regulate the performance of it at his own pleasure, is accounted to renounce it by not accepting of it in proper season and at the time for which the promise was made. Should he desire that the performance be deferred till another time, the promisor is in honour bound to consent to the prolongation, unless he can show by very good reasons that the promise would then become more inconvenient to him.
To levy contributions is an act of hostility which ought to cease as soon as peace is concluded (§ 24). Those which are already promised, but not yet paid, are a debt actually due; and, as such, the payment may be insisted on. But, in order to obviate all difficulty, it is proper that the contracting parties should clearly and minutely explain their intentions respecting matters of this nature; and they are generally careful to do so.
The fruits and profits of those things which are restored by a treaty of peace are due from the instant appointed for carrying it into execution: and if no particular period has been assigned, they are due from the moment when the restitution of the things themselves was agreed to: but those which were already received or become payable before the conclusion of the peace, are not comprised in the restitution; for the fruits and profits belong to the owner of the soil; and, in the case in question, possession is accounted a lawful title. For the same reason, in making a cession of the soil, we do not include in that cession the rents and profits antecedently due. This Augustus justly maintained against Sextus Pompey, who, on receiving a grant of the Peloponnesus, claimed the imposts of the preceding years.2
Those things, of which the restitution is, without further explanation, simply stipulated in the treaty of peace, are to be restored in the same state in which they were when taken: for the word "restitution" naturally implies that every thing should be replaced in its former condition. Thus, the restitution of a thing is to be accompanied with that of all the rights which were annexed to it when taken. But this rule must not be extended to comprise those changes which may have been the natural consequences and effects of the war itself and of its operations. A town is to be restored in the condition it was in when taken, as far as it still remains in that condition at the conclusion of the peace. But if the town has been razed or dismantled during the war, that damage was done by the right of arms, and is buried in oblivion by the act of amnesty. We are under no obligation to repair the ravages that have been committed in a country which we restore at the peace; we restore it in its existing state, but, as it would be a flagrant perfidy to ravage that country after the conclusion of the peace, the case is the same with respect to a town whose fortifications have escaped the devastation of war: to dismantle it previous to the restoration would be a violation of good faith and honour. If the captor has repaired the breaches, and put the place in the same state it was in before the siege, he is bound to restore it in that state. If he has added any new works, he may indeed demolish these: but if he has razed the ancient fortifications, and constructed others on a new plan, it will be necessary to come to a particular agreement respecting this improvement, or accurately to define in what condition the place shall be restored. Indeed this last precaution should in every case be adopted, in order to obviate all dispute and difficulty. In drawing up an instrument solely intended for the restoration of peace, it should be the object of the parties to leave, if possible, no ambiguity whatever, — nothing which may have a tendency to rekindle the flames of war. I am well aware, however, that this is not the practice of those who value themselves now-a-days on their superior abilities in negotiation: on the contrary, they study to introduce obscure or ambiguous clauses into a treaty of peace, in order to furnish their sovereign with a pretext for broaching a new quarrel and taking up arms again on the first favourable opportunity. How contrary such pitiful finesse is to the faith of treaties, we have already observed (Book II, § 231): it is a disparagement of that candour and magnanimity which should beam forth in all the actions of a great prince.
But, as it is extremely difficult wholly to avoid ambiguity in a treaty, though worded with the greatest care and the most honourable intentions, — and to obviate every doubt which may arise in the application of its several clauses to particular cases, — recourse must often be had to the rules of interpretation. We have already devoted an entire chapter to the exposition of those important rules:3 wherefore, instead of entering at present into tedious repetitions, we shall confine ourselves to a few rules more particularly adapted to the special case before us, — the interpretation of treaties of peace. 1. In case of doubt, the interpretation goes against him who prescribed the terms of the treaty: for as it was in some measure dictated by him, it was his own fault if he neglected to express himself more clearly: and by extending or restricting the signification of the expressions to that meaning which is least favourable to him, we either do him no injury, or we only do him that to which he has wilfully exposed himself; whereas, by adopting a contrary mode of interpretation, we would incur the risk of converting vague or ambiguous terms into so many snares to entrap the weaker party in the contract, who has been obliged to subscribe to what the stronger had dictated.
2. The names of countries ceded by treaty are to be understood according to the usage prevailing at the time among skilful and intelligent men: for it is not to be presumed that weak or ignorant persons should be intrusted with so important a concern as that of concluding a treaty of peace; and the articles of a contract are to be understood of what the contracting parties most probably had in contemplation, since the object in contemplation is the motive and ground of every contract.
3. The treaty of peace naturally and of itself relates only to the war which it terminates. It is, therefore, in such relation only, that its vague clauses are to be understood. Thus, the simple stipulation of restoring things to their former condition does not relate to changes which have not been occasioned by the war itself: consequently, this general clause cannot oblige either of the parties to set at liberty a free people who have voluntarily given themselves up to him during the war. And as a people, when abandoned by their sovereign, become free, and may provide for their own safety in whatever manner they think most advisable (Book I. § 202) — if such people, during the course of the war have voluntarily, and without military compulsion, submitted and given themselves up to the enemy of their former sovereign, the general promise of restoring conquests shall not extend to them. It were an unavailing plea, to allege that the party who requires all things to be replaced on their former footing may have an interest in the independence of the former of those people, and that he evidently has a very great one in the restoration of the latter. If he wished to obtain things which the general clause does not of itself comprise, he should have clearly and specifically expressed his intentions relative to them. Stipulations of every kind may be inserted in a treaty of peace; but if they bear no relation to the war which it is the view of the contracting parties to bring to a conclusion, they must be very expressly specified; for the treaty is naturally understood to relate only to its own particular object.
1. It is an essential point to neglect none of the formalities which can insure the execution of the treaty, and prevent new disputes. Accordingly, care must be taken to have it duly recorded in all the proper offices and courts. M. Van Benningen, writing to the Grand Pensionary De Witt, in 1662, thus observes — "The articles and conditions of this alliance contain various matters of different natures, the majority of which fall under the cognisance of the privy council, — several under that of the civil tribunals, the parliaments, &c. — escheatage, for instance, which comes under the cognisance of des comptes [exchequer]. Thus, the treaty must be recorded in all those different places." This advice was followed; and the states-general required that the treaty conducted the same year should be recorded in all the parliaments of the kingdom. See the king's reply on this subject, in his letter to the Count D'Estrades, page 399. — Edit A.D. 1797.
2. Applan, de Bell. Civ. lib. v., quoted by Grotius, lib. ii. cap. 20, § 22.
(190) As to the construction of treaties in general, see Book II. Chap. XVII. § 262, ante, 244. — C.
3. Book II. Chap. XVII. ante, 244-274.
THE treaty of peace concluded by a lawful power is undoubtedly a public treaty, and obligatory on the whole nation (Book II. § 154). It is likewise, by its nature, a real treaty; for if its duration had been limited to the life of the sovereign, it would be only a truce, and not a treaty of peace. Besides, every treaty which, like this, is made with a view to the public good, is a real treaty (Book II. § 198). It is therefore as strongly binding on the successors as on the prince himself who signed it, since it binds the state itself, and the successors can never have, in this respect, any other rights than those of the state.
After all we have said on the faith of treaties and the indispensable obligation which they impose, it would be superfluous to use many words in showing how religiously treaties of peace in particular should be observed both by sovereigns and people. These treaties concern and bind whole nations; they are of the highest importance; the breach of them infallibly rekindles the flames of war; — all which considerations give additional force to the obligation of keeping our faith, and punctually fulfilling our promises.
We cannot claim a dispensation from the observance of a treaty of peace, by alleging that it was extorted from us by fear, or wrested from us by force. In the first place, were this plea admitted, it would destroy, from the very foundations, all the security of treaties of peace; for there are few treaties of that kind, which might not be made to afford such a pretext, as a cloak for the faithless violation of them. To authorize such an evasion would be a direct attack on the common safety and welfare of nations: — the maxim would be detestable, for the same reasons which have universally established the sacredness of treaties (Book II. § 220). Besides, it would generally be disgraceful and ridiculous to advance such a plea. At the present day, it seldom happens that either of the belligerent parties perseveres to the last extremity before he will consent to a peace. Though a nation may have lost several battles, she can still defend herself: as long as she has men and arms remaining, she is not destitute of all resource. If she thinks fit, by a disadvantageous treaty, to procure a necessary peace, — if by great sacrifices she delivers herself from imminent danger or total ruin, — the residue which remains in her possession is still an advantage for which she is indebted to the peace: it was her own free choice to prefer a certain and immediate loss, but of limited extent, to an evil of a more dreadful nature, which, though yet at some distance, she had but too great reason to apprehend.
If ever the plea of constraint may be alleged, it is against an act which does not deserve the name of a treaty of peace, — against a forced submission to conditions which are equally offensive to justice and all the duties of humanity. If an unjust and rapacious conqueror subdues a nation, and forces her to accept of hard, ignominious, and insupportable conditions, necessity obliges her to submit; but this apparent tranquillity is not a peace; it is an oppression which she endures only so long as she wants the means of shaking it off, and against which men of spirit rise on the first favourable opportunity. When Ferdinand Cortes attacked the empire of Mexico without any shadow of reason, without even a plausible pretext, — if the unfortunate Montezuma could have recovered his liberty by submitting to the iniquitous and cruel conditions of receiving Spanish garrisons into his towns and his capital, of paying an immense tribute, and obeying the commands of the king of Spain, — will any man pretend to assert that he would not have been justifiable in seizing a convenient opportunity to recover his rights, to emancipate his people, and to expel or exterminate the Spanish horde of greedy, insolent, and cruel usurpers? No! such a monstrous absurdity can never be seriously maintained. Although the law of nature aims at protecting the safety and peace of nations by enjoying the faithful observances of promises, it does not favour oppressors. All its maxims tend to promote the advantage of mankind: that is the end of all laws and rights. Shall he, who with his own hand tears asunder all the bonds of human society, be afterwards allowed to claim the benefit of them? Even though it were to happen that this maxim should be abused, and that a nation should, on the strength of it, unjustly rise in arms and recommence hostilities, — still it is better to risk that inconvenience than to furnish usurpers with an easy mode of perpetuating their injustice, and establishing their usurpation on a permanent basis. Besides, were you to preach up the contrary doctrine which is so repugnant to all the feelings and suggestions of nature, where could you expect to make proselytes?
Equitable agreements, therefore, or at least such as are supportable, are alone entitled to the appellation of treaties of peace: these are the treaties which bind the public faith, and which are punctually to be observed, though in some respects harsh and burdensome. Since the nation consented to them, she must have considered them as in some measure advantageous under the then existing circumstances; and she is bound to respect her promise. Were men allowed to rescind at a subsequent period those agreements to which they were glad to subscribe on a former occasion, there would be an end to all stability in human affairs.
The breach of a treaty of peace consists in violating the engagements annexed to it, either by doing what it prohibits, or by not doing what it prescribes. Now, the engagements contracted by treaty maybe violated in three different ways, — either by a conduct that is repugnant to the nature and essence of every treaty of peace in general, — by proceedings which are incompatible with the particular nature and essence of every treaty of peace in general, — by proceedings which are incompatible with the particular nature of the treaty in question, — or, finally, by the violation of any article expressly contained in it.
First, a nation acts in a manner that is repugnant to the nature and essence of every treaty of peace, and to peace itself, when she disturbs it without cause, either by taking up arms and recommencing hostilities without so much as a plausible pretext, or by deliberately and wantonly offending the party with whom she has concluded a peace, and offering such treatment of him or his subjects as is incompatible with the state of peace, and such as he cannot submit to without being deficient in the duty which he owes to himself. It is likewise acting contrary to the nature of all treaties of peace to take up arms a second time for the same subject that had given rise to the war which has been brought to a conclusion, or through resentment of any transaction that had taken place during the continuance of hostilities. If she cannot allege at least some plausible pretext borrowed from a fresh cause, which may serve to palliate her conduct, she evidently revives the old war that was extinct, and breaks the treaty of peace.
But to take up arms for a fresh cause is no breach of the treaty of peace: for though a nation has promised to live in peace, she has not therefore promised to submit to injuries and wrongs of every kind, rather than procure justice by force of arms. The rupture proceeds from him who, by his obstinate injustice, renders this method necessary.
But here it is proper to recall to mind what we have more than once observed, — namely, that nations acknowledge no common judge on earth, — that they cannot mutually condemn each other without appeal, — and, finally, that they are bound to act in their quarrels as if each was equally in the right. On this footing, whether the new cause which gives birth to hostilities be just or not, neither he who makes it a handle for taking up arms, nor he who refuses satisfaction, is reputed to break the treaty of peace, provided the cause of complaint on the one hand, and the refusal of satisfaction on the other, have at least some colour of reason, so as to render the question doubtful. When nations cannot come to any agreement on questions of this kind, their only remaining resource is an appeal to the sword. In such case the war is absolutely a new one, and does not involve any infraction of the existing treaty.
And as a nation, in making a peace, does not thereby give up her right of contracting alliances and assisting her friends, it is likewise no breach of the treaty of peace to form a subsequent alliance with the enemies of the party with whom she has concluded such treaty, — to join them, to espouse their quarrel, and unite her arms with theirs, — unless the treaty expressly prohibits such connections. At most, she can only be said to embark in a fresh war in defence of another people's cause.
But I here suppose these new allies to have some plausible grounds for taking up arms, and that the nation in question has just and substantial reasons for supporting them in the contest. Otherwise, to unite with them just as they are entering on the war, or when they have already commenced hostilities, would be evidently seeking a pretext to elude the treaty of peace, and no better, in fact, than an artful and perfidious violation of it.
It is of great importance to draw a proper distinction between a new war and the breach of an existing treaty of peace, because the rights acquired by such treaty still subsist, notwithstanding the new war: whereas they are annulled by the rupture of the treaty on which they were founded. It is true, indeed, that the party who had granted those rights does not fail to obstruct the exercise of them during the course of the war, as far as lies in his power, — and even may, by the right of arms, wholly deprive his enemy of them, as well as he may wrest from him his other possessions. But in that case he withholds those rights as things taken from the enemy, who, on a new treaty of peace, may urge the restitution of them. In negotiations of that kind, there is a material difference between demanding the restitution of what we were possessed of before the war, and requiring new concessions, a little equality in our successes entitles us to insist on the former, whereas nothing less than a decided superiority can give us a claim to the latter. It often happens, when nearly equal success has attended the arms of both parties, that the belligerent powers agree mutually to restore their conquests, and to replace every thing in its former state. When this is the case, if the war in which they were engaged was a new one, the former treaties still subsist; but if those treaties were broken by taking up arms a second time for the same subject, and an old war was revived, they remain void; so that, if the parties wish they should again take effect, they must expressly specify and confirm them in their new treaty.
The question before us is highly important in another view also, — that is, in its relation to other nations who may be interested in the treaty, inasmuch as their own affairs require them to maintain and enforce the observance of it. It is of the utmost consequence to the guarantees of the treaty, if there are any, — and also to the allies, who have to discover and ascertain the cases in which they are bound to furnish assistance. Finally, he who breaks a solemn treaty is much more odious than the other, who, after making an ill-grounded demand, supports it by arms. The former adds perfidy to injustice: he strikes at the foundation of public tranquillity; and as he thereby injures all nations, he affords them just grounds for entering into a confederacy in order to curb and repress him. Wherefore, as we ought to be cautious of imputing the more odious charge, Grotius justly observes, that, in a case of doubt, and where the recurrence to arms may be vindicated by some specious pretext resting on a new ground, "it is better that we should, in the conduct of him who takes up arms anew, presume simple injustice, unaccompanied by perfidy, than account him at once guilty both of perfidy and injustice."1
Justifiable self-defence is no breach of the treaty of peace. It is a natural right which we cannot renounce: and, in promising to live in peace, we only promise not to attack without cause, and to abstain from injuries and violence. But there are two modes of defending our persons or our property; sometimes the violence offered to us will admit of no other remedy than the exertion of open force; and under such circumstances, we may lawfully have recourse to it. On other occasions, we may obtain redress for the damage and injury by gentler methods; and to these we ought of course to give the preference. Such is the rule of conduct which ought to be observed by two nations that are desirous of maintaining peace, whenever the subjects of either have happened to break out into any act of violence. Present force is checked and repelled by force. But, if there is question of obtaining reparation of the damage done, together with adequate satisfaction for the offence, we must apply to the sovereign of the delinquents: we must not pursue them into his dominions, or have recourse to arms, unless he has refused to do us justice. If we have reason to fear that the offenders will escape, — as, for instance, if a band of unknown persons from a neighbouring country have made an irruption into our territory, — we are authorized to pursue them with an armed force into their own country, until they be seized; and their sovereign cannot consider our conduct in any other light than that of just and lawful self-defence, provided we commit no hostilities against innocent persons.
When the principal contracting party has included his allies in the treaty, their cause becomes in this respect inseparable from his; and they are entitled, equally with him, to enjoy all the conditions essential to a treaty of peace; so that any act, which, if committed against himself, would be a breach of the treaty, is no less a bleach of it, if committed against the allies whom he has caused to be included in his treaty. If the injury be done to a new ally, or to one who is not included in the treaty, it may, indeed, furnish a new ground for war, but is no infringement of the treaty of peace.
The second way of breaking a treaty of peace is by doing any thing contrary to what the particular nature of the treaty requires. Thus, every procedure that is inconsistent with the rules of friendship is a violation of a treaty of peace which has been concluded under the express condition of thenceforward living in amity and good understanding.
To favour a nation's enemies, — to give harsh treatment to her subject, — to lay unnecessary restrictions on her commerce, or give another nation a preference over her without reason, — to refuse assisting her with provisions, which she is willing to pay for, and we ourselves can well spare, — to protect her factious or rebellious subjects, — to afford them an asylum, — all such proceedings are evidently inconsistent with the laws of friendship. To this list, may, according to circumstances, be also added — the building of fortresses on the frontiers of a state, — expressing distrust against her, — levying troops, and refusing to acquaint her with the motives of such step, &c.(191) But, in affording a retreat to exiles, — in harbouring subjects who chose to quit their country, without an intention of injuring it by their departure, and solely for the advantage of their private affairs, — in charitably receiving emigrants who depart from their country with a view to enjoy liberty of conscience elsewhere, — there is nothing inconsistent with the character of a friend. The private laws of friendship do not, according to the caprice of our friends, dispense with our observance of the common duties of humanity which we owe to the rest of our species.
Lastly, the peace is broken by the violation of any of the express articles of the treaty. This third way of breaking it is the most decisive, the least susceptible of quibble or evasion. Whoever fails in his engagements annuls the contract as far as depends on him: — this cannot admit of a doubt.
But it is asked whether the violation of a single article of the treaty can operate a total rupture of it? Some writers,2 here drawing a distinction between the articles that are connected together (connexi) and those that stand detached and separate (diversi), maintain, that, although the treaty be violated in the detached articles, the peace nevertheless still subsists with respect to the others, But, to me, the opinion of Grotius' appears evidently founded on the nature and spirit of treaties of peace. That great man says that all the articles of one and the same treaty are conditionally included in each other, as if each of the contracting parties had formally said, "I will do such or such thing, provided that, on your part, you do so and so;"3 and he justly adds, that, when it is designed that the engagement shall not be thereby rendered ineffectual, this express clause is inserted, — that, "though any one of the articles of the treaty may happen to be violated, the others shall subsist in full force." Such an agreement may unquestionably be made. It may likewise be agreed that the violation of one article shall only annul those corresponding to it, and which, as it were, constitute the equivalent to it. But, if this clause be not expressly inserted in the treaty of peace, the violation of a single article overthrows the whole treaty, as we have proved above, in speaking of treaties in general (Book II. § 202).
It is equally nugatory to attempt making a distinction in this instance between the articles of greater and those of lesser importance. According to strict justice, the violation of the most trifling article dispenses the injured party from the observance of the others, since they are all, as we have seen above, connected with each other, as so many conditions. Besides, what a source of dispute will such a distinction lay open! Who shall determine the importance of the article violated? We may, however, assert with truth, that, to be ever ready to annul a treaty on the slightest cause of complaint, is by no means consonant to the reciprocal duties of nations, to that mutual charity, that love of peace, which should always influence their conduct.
In order to prevent so serious an inconvenience, it is prudent to agree on a penalty to be suffered by the party who violates any of the less important articles: and then, on his submitting to the penalty, the treaty still subsists in full force. In like manner, there may, to the violation of each individual article, be annexed a penalty proportionate to its importance. We have treated of this subject in our remarks on truces (Book III, § 243), to which we refer the reader.
Studied delays are equivalent to an express denial, and differ from it only by the artifice with which he who practises them seeks to palliate his want of faith: he adds fraud to perfidy, and actually violates the article which he should fulfil.
But, if a real impediment stand in the way, time must be allowed; for no one is bound to perform impossibilities. And for the same reason, if any insurmountable obstacle should render the execution of an article not only impracticable for the present, but for ever impossible, no blame is imputable to him who had engaged for the performance of it; nor can his inability furnish the other party with a handle for annulling the treaty; but the latter should accept of an indemnification, if the case will admit of it, and the indemnification be practicable. However, if the thing which was to have been performed in pursuance of the article in question be of such a nature that the treaty evidently appears to have been concluded with a sole view to that particular thing, and not to any equivalent, — the intervening impossibility undoubtedly cancels the treaty. Thus, a treaty of protection becomes void when the protector is unable to afford the promised protection, although his inability does not arise from any fault on his part. In the same manner, also, whatever promises a sovereign may have made on condition that the other party should procure him the restoration of an important town, he is released from the performance of every thing which he had promised as the purchase of the recovery, if he cannot be put in possession. Such is the invariable rule of justice. But rigid justice is not always to be insisted on: — peace is so essential to the welfare of mankind, and nations are so strictly bound to cultivate it, to procure it, and to re-establish it when interrupted, — that, whenever any such obstacles impede the execution of a treaty of peace, we ought ingenuously to accede to every reasonable expedient, and accept of equivalents or indemnifications, rather than cancel a treaty of peace already concluded, and again have recourse to arms.
We have already, in an express chapter (Book II. Chap. VI.), examined how and on what occasions the actions of subjects may be imputed to the sovereign and the nation. It is by what circumstance we must be guided in determining how far the proceedings of the subjects may be capable of annulling a treaty of peace. They cannot produce such effect unless so far as they are imputable to the sovereign. He who is injured by the subjects of another nation takes satisfaction for the offence, himself, when he meets with the delinquents in his own territories, or in a free place, as, for instance, on the open sea; or if it be more agreeable to him, he demands justice of their sovereign. If the offenders are refractory subjects, no demand can be made on their sovereign; but whoever can seize them, even in a free place, executes summary justice on them himself. Such is the mode observed towards pirates: and, in order to obviate all misunderstandings, it is generally agreed that the same treatment be given to all private individuals who commit acts of hostility without being able to produce a commission from their sovereign.
The actions of our allies are still less imputable to us than those of our subjects. The infractions of a treaty of peace by allies, even by those who have been included in it, or who joined in it as principals, can therefore produce no rupture of it except with regard to themselves, and do not affect it in what concerns their ally, who, on his part, religiously observes his engagements. With respect to him, the treaty subsists in full force, provided he do not undertake to support the cause of those perfidious allies, if he furnishes them with such assistance as he cannot be bound to give them on an occasion of this nature, he espouses their quarrel, and becomes an accomplice in their breach of faith. But, if he has an interest in preventing their ruin, he may interpose, and, by obliging them to make every suitable reparation, save them from an oppression of which he would himself collaterally feel the effects. It even becomes an act of justice to undertake their defence against an implacable enemy, who will not be contented with an adequate satisfaction.
When the treaty of peace is violated by one of the contracting parties, the other has the option of either declaring the treaty null and void, or allowing it still to subsist: for a contract which contains reciprocal engagements, cannot be binding on him with respect to the party who on his side pays no regard to the same contract. But, if he chooses not to come to a rupture, the treaty remains valid and obligatory. It would be absurd that he who had been guilty of the violation should pretend that the agreement was annulled by his own breach of faith: this would, indeed, be an easy way of shaking off engagements, and would reduce all treaties to empty formalities. If the injured party be willing to let the treaty subsist, he may either pardon the infringement, — insist on an indemnification or adequate satisfaction, — or discharge himself, on his part, from those engagements corresponding with the violated article, — those promises he had made in consideration of a thing which has not been performed. But, if he determines on demanding a just indemnification, and the party in fault refuses it, then the treaty is necessarily broken, and the injured party has a very just cause for taking up arms again. And indeed this is generally the case; for it seldom happens that the infractor will submit to make reparation, and thereby acknowledge himself in fault.
1. Lib. iii. cap. 20, § 28.
(191) And see, ante. Book III. c. 3, as to what are just causes of war. — C.
2. See Wolf. Jus Gent. §§ 1022, 1023.
3. Lib. iii. cap. xix. § 14.
IT is necessary that nations should treat and hold intercourse together, in order to promote their interests, — to avoid injuring each other, — and to adjust and terminate their disputes. And as they all he under the indispensable obligation of giving their consent and concurrence to whatever conduces to the general advantage and welfare (Prelim. § 13) — of procuring the means of accommodating and terminating their differences (Book II. § 323, &c.) — and as each has a right to every thing which her preservation requires (Book I. § 18) — to every thing which can promote her perfection without injuring others (Ib. § 23), as also to the necessary means of fulfilling her duties, — it results from the premises, that each nation is at once possessed of the right to treat and communicate with others, and bound by reciprocal obligation to consent to such communication as far as the situation of her affairs will permit her.
But nations or sovereign states do not treat together immediately: and their rulers or sovereigns cannot well come to a personal conference in order to treat of their affairs. Such interviews would often be impracticable; and, exclusive of delays, trouble, expense, and so many other inconveniences, it is rarely, according to the observation of Philip de Commines, that any good effect could be expected from them. The only expedient, therefore, which remains for nations and sovereigns, is to communicate and treat with each other by the agency of procurators or mandatories, — of delegates charged with their commands, and vested with their powers, — that is to say, public ministers. This term, in its more extensive and general sense, denotes any person intrusted with the management of public affairs, but is more particularly understood to designate one who acts in such capacity at a foreign court.
At present there are several orders of public ministers, and in the sequel we shall speak of them; but whatever difference custom has introduced between them, the essential character is common to them all; I mean that of minister, and in some sort, representative of a foreign power, — a person charged with the commands of that power, and delegated to manage his affairs: and that quality is sufficient for our present purpose.
Every sovereign state then has a right to send and to receive public ministers; for they are necessary instruments in the management of those affairs which sovereigns have to transact with each other, and the channels of that correspondence which they have a right to carry on. In the first chapter of this work may be seen who are those sovereigns, and what those independent states, that are entitled to rank in the great society of nations. They are the powers to whom belongs the right of embassy.
An unequal alliance, or even a treaty of protection, not being incompatible with sovereignty (Book I. §§ 5, 6), — such treaties do not of themselves deprive a state of the right of sending and receiving public ministers. If the inferior ally or the party protected has not expressly renounced the right of entertaining connections and treating with other powers, he necessarily retains that of sending ministers to them, and of receiving their ministers in turn. The same rule applies to such vassals and tributaries as are not subjects (Book I. §§ 7,8).
Nay more, this right may even belong to princes or communities not possessed of sovereign power; for the rights whose assemblage constitutes the plenitude of sovereignly, are not indivisible: and if, by the constitution of the state, by the concession of the sovereign, or by reservations which the subjects have made with him, a prince or community remains possessed of any one of those rights which usually belong to the sovereign alone, such prince or community may exercise it, and avail themselves of it in all its effects and all its natural or necessary consequences, unless they have been formally excepted. Though the princes and states of the empire are dependent on the emperor and the empire, yet they are sovereign in many respects; and as the constitutions of the empire secure to them the right of treating with foreign powers and contracting alliances with them, they incontestably have also that of sending and receiving public ministers. The emperors, indeed, when they felt themselves able to carry their pretensions very high, have sometimes disputed that right, or at least attempted to render the exercise of it subject to the control of their supreme authority, — insisting that their permission was necessary to give it a sanction. But since the peace of Westphalia, and by means of the imperial capitulations, the princes and states of Germany have been able to maintain themselves in the possession of that right; and they have secured to themselves so many other rights, that the empire is now considered as a republic of sovereigns.
There are even cities which are and which acknowledge themselves to be in a state of subjection, that have nevertheless a right to receive the ministers of foreign powers, and to send them deputies, since they have a right to treat with them. This latter circumstance is the main point upon which the whole question turns; for whosoever has a right to the end, has a right to the moans. It would be absurd to acknowledge the right of negotiating and treating, and to contest the necessary means of doing it. Those cities of Switzerland, such as Neufchatel and Bienne, which have the right of banner, have, by natural consequence, a right to treat with foreign powers, although the cities in question be subject to the dominion of a prince: for the right of banner, or of arms, comprehends that of granting succours of troops,1 provided such grants be not inconsistent with the service of the prince. Now, if those cities are entitled to grant troops, they must necessarily be at liberty to listen to the applications made to them on the subject by a foreign power, and to treat respecting the conditions. Hence it follows that they may also depute an agent to him for that purpose, or receive his ministers. And as they are at the same time vested with the administration of their own internal police, they have it in their power to insure respect to such foreign ministers as come to them. What is here said of the rights of those cities is confirmed by ancient and constant practice. However exalted and extraordinary such rights may appear, they will not be thought strange, if it be considered that those very cities were already possessed of extensive privileges at the time when their princes were themselves dependent on the emperors, or on other liege lords who were immediate vassals of the empire. When the princes shook off the yoke of vassalage, and established themselves in a state of perfect independence, the considerable cities in their territories made their own conditions; and instead of rendering their situation worse, it was very natural that they should take hold of existing circumstances, in order to secure to themselves a greater portion of freedom and happiness. Their sovereigns cannot now advance any plea in objection to the terms on which those cities consented to follow their fortunes and to acknowledge them as their only superiors.
Viceroys and chief governors of a sovereignty or remote province have frequently the right of sending and receiving public ministers; but, in that particular, they act in the name and by the authority of the sovereign whom they represent, and whose rights they exercise. That entirely depends on the will of the master by whom they are delegated. The viceroy of Naples, the governors of Milan, and the governors-general of the Netherland for Spain, were invested with such power.
The right of embassy, like all the other rights of sovereignty, originally resides in the nation as its principal and primitive subject. During an interregnum, the exercise of that right reverts to the nation, or devolves on those whom the laws have invested with the regency of the state. They may send ministers in the same manner as the sovereign used to do; and these ministers possess the same rights as were enjoyed by those of the sovereign. The republic of Poland sends ambassadors while her throne is vacant: nor would she suffer that they should be treated with less respect and consideration than those who are sent while she has a king, Cromwell effectually maintained the ambassadors of England in the same rank and respectability which they possessed under the regal authority.
Such being the rights of nations, a sovereign who attempts to hinder another from sending and receiving public ministers, does him an injury, and offends against the law of nations. It is attacking a nation in one of her most valuable rights, and disputing her title to that which nature herself gives to every independent society: it is offering an insult to nations in general, and tearing asunder the ties by which they are united.
But this is to be understood only of a time of peace; war introduces other rights. It allows us to cut off from an enemy all his resources, and to hinder him from sending ministers to solicit assistance. There are even occasions when we may refuse a passage to the ministers of neutral nations, who are going to our enemy. We are under no obligation to allow them an opportunity of perhaps conveying him intelligence of a momentous nature, and concerting with him the means of giving him assistance, &c. This admits of no doubt, for instance, in the case of a besieged town. No right can authorize the minister of a neutral power or any other person whatsoever, to enter the place without the besieger's consent. But, in order to avoid giving offence to sovereigns, good reasons must be alleged for refusing to let their ministers pass; and with such reasons they must rest satisfied, if they are disposed to remain neuter. Sometimes even a passage is refused to suspected ministers in critical and dubious junctures, although there do not exist any open war. But this is a delicate proceeding, which, if not justified by reasons that are perfectly satisfactory, produces an acrimony that easily degenerates into an open rupture.
As nations are obliged to correspond together, to attend to the proposals and demands made to them, to keep open a free and safe channel of communication for the purpose of mutually understanding each other's views and bringing their disputes to an accommodation, a sovereign cannot, without very particular reasons, refuse admitting and hearing the minister of a friendly power, or of one with whom he is at peace. But in case there be reasons for not admitting him into the heart of the country, he may notify to him that he will send proper persons to meet him at an appointed place on the frontier, there to hear his proposals. It then becomes the foreign minister's duty to stop at the place assigned: it is sufficient that he obtains a hearing; that being the utmost that he has a right to expect.
The obligation, however, does not extend so far as to include that of suffering at all times the residence of perpetual ministers, who are desirous of remaining at the sovereign's court, although they have no business to transact with him. It is natural, indeed, and perfectly conformable to the sentiments which nations ought mutually to entertain for each other, that a friendly reception should be given to those resident ministers, when there is no inconvenience to be apprehended from their slay. But if there exist any substantial reason to the contrary, the advantage of the state undoubtedly claims a preference; and the foreign sovereign cannot take it amiss if his minister be requested to withdraw, when he has fulfilled the object of his commission, or when he has not any business to transact. The custom of keeping every where ministers constantly resident is now so firmly established, that whoever should refuse to conform to it, must allege very good reasons for his conduct, if he wishes to avoid giving offence. These reasons may arise from particular conjunctures: but there are also ordinary reasons ever subsisting, and such as relate to the constitution of a government and the state of a nation. Republics would often have very good reasons of the latter kind, to excuse themselves from continually suffering the residence of foreign ministers, who corrupt the citizens, — gain them over to their masters, to the great detriment of the republic, — and excite and foment parties in the state, &c. And even though no other evil should arise from their presence than that of inspiring a nation, originally plain, frugal, and virtuous, with a taste for luxury, the thirst of gain, and the manners of courts, — that alone would be more than sufficient to justify the conduct of wise and provident rulers in dismissing them. The Polish government is not fond of resident ministers; and indeed their intrigues with the members of the diet have furnished but too many reasons for keeping them at a distance. In the war of 1666, a nuncio publicly complained, in the open diet, of the French ambassador's unnecessarily prolonging his stay in Poland, and declared that he ought to be considered as a spy. In 1668, other members of that body moved for a law to regulate the length of time that an ambassador should be allowed to remain in the kingdom.2
The greater calamities of war are, the more it is incumbent on nations to preserve means for putting an end to it. Hence it becomes necessary, that, even in the midst of hostilities, they be at liberty to send ministers to each other, for the purpose of making overtures of peace, or proposals tending to moderate the transports of hostile rage. It is true, indeed, that the minister of an enemy cannot come without permission; accordingly, a passport, or safe-conduct, is asked for him, either through the intervention of some common friend, or by one of those messengers who are protected by the laws of war, and of whom we shall speak in the sequel — I mean a trumpeter or drummer. It is true, also, that, for substantial reasons, the safe-conduct may be refused, and admission denied to the minister. But this liberty, which is authorized by the care that every nation is bound to bestow on her own safety, is no bar to our laying it down as a general maxim, that we are not to refuse admitting and hearing an enemy's minister; that is to say, that war alone, and of itself, is not a sufficient reason for refusing to hear any proposal coming from an enemy; but that, to warrant such refusal, there must exist some reason of a particular nature, and which rests upon very good grounds, as, for instance, when an artful and designing enemy has, by his own conduct, given us just cause to apprehend that his only intention, in sending his ministers and making proposals, is to disunite the members of a confederacy, to lull them into security by holding out false appearances of peace, and then to overpower them by surprise.
Before we conclude this chapter, it will be proper to discuss a celebrated question, which has been often debated. It is asked whether foreign nations may receive the ambassadors and other ministers of an usurper, and send their ministers to him? In this particular, foreign powers take for their rule the circumstance of actual possession, if the-interest of their affairs so require: and, indeed, there cannot be a more certain rule, or one that is more agreeable to the law of nations and the independency of states. As foreigners have no right to interfere in the domestic concerns of a nation, they are not obliged to canvass and scrutinize her conduct in the management of them, in order to determine how far it is either just or unjust. They may, if they think proper, suppose the right to be annexed to the possession. When a nation has expelled her sovereign, other powers, who do not choose to declare against her, and to risk the consequences of her enmity or open hostility, consider her thenceforward as a free and sovereign state, without taking on themselves to determine whether she has acted justly in withdrawing from her allegiance to the prince by whom she was governed. Cardinal Mazarin received Lockhart, whom Cromwell had sent as ambassador from the republic of England, and refused to see either King Charles the Second, or his ministers. If a people, after having expelled their prince, submit to another — if they change the order of succession, and acknowledge a sovereign to the prejudice of the natural and appointed heir — foreign powers may, in this instance also, consider what has been done as lawful: it is no quarrel or business of theirs. At the beginning of the last century, Charles, Duke of Sudermania, having obtained the crown of Sweden, to the prejudice of his nephew Sigismund, king of Poland, was soon acknowledged by most sovereigns. Villeroy, minister of the French monarch, Henry the Fourth, in his dispatches of the 8th of April, 1608, plainly said to the president, Jeanin, "All these reasons and considerations shall not prevent the king from treating with Charles, if he finds it to be his interest, and that of his kingdom." This remark was sensible and judicious. The king of France was neither the judge nor the guardian of the Swedish nation, that he should, contrary to the interests of his own kingdom, refuse to acknowledge the king whom Sweden had chosen, under pretence that a competitor had termed Charles an usurper. Had the charge been even founded injustice, it was an affair which did not fall under the cognizance of foreigners.
Therefore, when foreign powers have received the ministers of an usurper, and sent theirs to him, the lawful prince, on recovering the throne, cannot complain of these measures as an injury, nor justly make them the ground of a war, provided those powers have not proceeded to greater lengths, nor furnished any assistance against him. But to acknowledge the dethroned prince or his heir, after the state has solemnly acknowledged the person to whom the sceptre has been transferred, is an injury done to the latter, and a profession of enmity to the nation that has chosen him. Such a step, hazarded in favour of James the Second's son, was, by William the Third and the British nation, alleged as one of the principal reasons of the war which England soon after declared against France. Notwithstanding all the caution, and all the protestations of Louis the Fourteenth, his acknowledgment of young Stuart, as king of England, Scotland, and Ireland, under the title of James the Third, was considered by the English as an injury done both to the king and to the nation.
1. See the History of the Helvetic Confederacy, by M. de Watteville.
2. Wiquefort's Ambassador, b. i. § 1.
IN former days, people were scarcely acquainted with more than one order of public ministers, in Latin termed legati, which appellation has been rendered by that of "ambassadors." But, when courts were become more proud, and, at the same time, more punctilious in the article of ceremony, and especially when they had introduced the idea of extending the minister's representation even to that of his master's dignity, it was thought expedient to employ commissioners of less exalted rank on certain occasions, in order to avoid trouble, expense, and disputes. Louis the Eleventh of France was, perhaps, the first who set the example. Thus, several orders of ministers being established, more or less dignity was annexed to their character, and proportionate honours were required for them.
Every minister, in some measure, represents his master, as every agent or delegate represents his constituent. But this representation relates to the affairs of his office: the minister represents the subject in whom reside the rights which he is to exercise, preserve, and assert — the rights respecting which he is to treat in his master's stead. Although such representation is admitted in a general view, and so far as respects the essence of affairs, it is with an abstraction of the dignity of the constituent. In process of time, however, princes would have ministers to represent them, not only in their rights and in the transaction of their affairs, but also in their dignity, their greatness, and their pre-eminence. It was, no doubt, to those signal occasions of state, those ceremonies for which ambassadors are sent, as, for instance, marriages, that this custom owes its origin. But so exalted a degree of dignity in the minister is attended with considerable inconvenience in conducting business, and, besides occasioning trouble and embarrassment, is often productive of difficulties and disputes. This circumstance has given birth to different orders of public ministers, and various degrees of representation. Custom has established three principal degrees. What is, by way of pre-eminence, called the representative character, is the faculty possessed by the minister, of representing his master even in his very person and dignity.
The representative character, so termed by way of pre-eminence, or in contradistinction to other kinds of representation, constitutes the minister of the first rank the ambassador. It places him above all other ministers who are not invested with the same character, and precludes their entering into competition with the ambassador. At present there are ambassadors ordinary and extraordinary: but this is no more than an accidental distinction, merely relative to the subject of their mission. Yet almost everywhere some difference is made in the treatment of these different ambassadors. That, however, is purely matter of custom.
Envoys are not invested with the representative character, properly so called, or in the first degree. They are ministers of the second rank, on whom their master was willing to confer a degree of dignity and respectability, which, without being on a level with the character of an ambassador, immediately follows it, and yields the pre-eminence to it alone. There are also envoys ordinary and extraordinary; and it appears to be the intention of princes that the latter should be held in greater consideration. This likewise depends on custom.
The word resident formerly related only to the continuance of the minister's stay; and it is frequent, in history, for ambassadors in ordinary to be designated by the simple title of residents. But, since the practice of employing different orders of ministers has been generally established, the name of residents has been confined to ministers of a third order, to whose character general custom has annexed a lesser degree of respectability. The resident does not represent the prince's person in his dignity, but only in his affairs. His representation is in reality of the same nature as that of the envoy: wherefore we often term him, as well as the envoy, a minister of the second order, — thus, distinguishing only two classes of public ministers, the former consisting of ambassadors who are invested with the representative character in pre-eminence, the latter comprising all other ministers who do not possess that exalted character. This is the most necessary distinction, and, indeed, the only essential one.
Lastly, a custom of still more recent origin has introduced a new kind of ministers without any particular determination of character. These are called simply ministers, to indicate that they are invested with the general quality of a sovereign's mandatories, without any particular assignment of rank and character. It was likewise the punctilio of ceremony which gave rise to this innovation. Use had established particular modes of treatment for the ambassador, the envoy, and the resident. Disputes between ministers of the several princes often arose on this head, and especially about rank. In order to avoid all contest on certain occasions when there might be room to apprehend it, the expedient was adopted of sending ministers not invested with any one of the three known characters. Hence, they are not subjected to any settled ceremonial, and can pretend to no particular treatment. The minister represents his master in a vague and indeterminate manner, which cannot be equal to the first degree; consequently he makes no demur in yielding pre-eminence to the ambassador. He is entitled to the general regard due to a confidential person intrusted by a sovereign with the management of his affairs; and he possesses all the rights essential to the character of a public minister. This indeterminate quality is such that the sovereign may confer it on one of his servants whom he would not choose to invest with the character of ambassador; and, on the other hand, it may be accepted by men of rank, who would be unwilling to undertake the office of resident, and to acquiesce in the treatment at present allotted to men in that station. There are also ministers plenipotentiary, and of much greater distinction than simple ministers. These also are without any particular attribution of rank and character, but, by custom, are now placed immediately after the ambassador, or on a level with the envoy extraordinary.
We have spoken of consuls in treating of commerce (Book II. § 34). Formerly, agents were a kind of public ministers: but in the present increase and profusion of titles, this is given to persons simply appointed by princes to transact their private affairs, and who not unfrequently are subjects of the country where they reside. They are not public ministers, and consequently not under the protection of the law of nations. But a more particular protection is due to them than to other foreigners or citizens, and likewise some attention in consideration of the prince whom they serve. If that prince sends an agent with credentials and on public business, the agent thenceforward becomes a public minister; his title making no difference in the case. The same remark is also applicable to deputies, commissioners, and others intrusted with the management of public affairs.
Among the several characters established by custom, it rests with the sovereign to determine with what particular one he chooses to invest his minister; and he makes known the minister's character in the credentials which he gives him for the sovereign to whom he sends him. Credentials are the instrument which authorizes and establishes the minister in his character with the prince to whom they are addressed. If that prince receives the minister, he can receive him only in the quality attributed to him in his credentials. They are, as it were, his general letter of attorney, his mandate patent, mandatum manifestum.
The instructions given to the minister contain his master's secret mandate, the orders to which the minister must carefully conform, and which limit his powers. Here we might apply all the rules of the law of nature respecting procurations and mandates, whether open or secret. But exclusive of their being more particularly applicable to the subject of treaties, we may with the less impropriety dispense with such details in this work, as the custom has wisely been established, that no engagements into which a minister may enter, shall have any validity between sovereigns, unless ratified by his principal.
We have seen above that every sovereign, every community, and even every individual, who has a right to treat with foreign powers, has also that of sending ambassadors. (See the preceding chapter.) The question admits of no difficulty so far as respects simple ministers or mandatories, considered in general as persons intrusted with the affairs, and vested with the powers, of those who have a right to treat. Further, the ministers of every sovereign are, without hesitation, allowed to enjoy all the rights and prerogatives belonging to ministers of the second order. Powerful monarchs, indeed, deny to some petty states the right of sending ambassadors: but let us see with what reason. According to the generally established custom, the ambassador is a public minister, representing the person and dignity of a sovereign; and, as this representative character procures him particular honours, great princes are therefore unwilling to admit the ambassador of an inconsiderable state, from a repugnance to paying him honours of so distinguished a kind. But it is manifest that every sovereign has an equal right of causing himself to be represented in the first as well as in the second or the third degree: and the sovereign dignity is entitled to distinguished respect in the great society of nations. We have shown (Book II. Ch. III.) that the dignity of independent nations is essentially the same: that a sovereign prince, however low he may rank in the scale of power, is as completely sovereign and independent as the greatest monarch, in the same manner as a dwarf is a man equally with a giant: although, indeed, the political giant makes a more conspicuous figure in the general society than the dwarf, and has, on that account, a greater portion of respect and more signal honours paid to him. It is evident, then, that every prince, every state, truly possessed of sovereignty, has a right to send ambassadors, and that to contest their right in this instance is doing them a very great injury; it is, in fact, contesting their sovereign dignity. And if they have that right, their ambassadors cannot be refused those regards and honours which custom particularly assigns to the representative of a sovereign. The king of France admits no ambassadors from the princes of Germany, as refusing to their ministers the honours annexed to the first degree of representation; yet he receives ambassadors from the princes of Italy. The reason alleged for this conduct is that he considers the latter to be more perfectly sovereign princes than the former, because, though equally vassals of the emperor and the empire, they are not equally dependent on the imperial authority. The emperors, nevertheless, claim the same rights over the princes of Italy, as over those of Germany. But France, seeing that the former do not actually constitute a part of the Germanic body, nor assist at the diets, countenances their absolute independence, in order as much as possible to detach them from the empire.
I shall not here enter into a detail of the honours due and actually paid to ambassadors: these are matters which altogether depend on institution and custom: I shall only observe, in general, that they are entitled to those civilities and distinctions which usage, and the prevailing manners of the time, have pointed out as proper expressions of the respect due to the representative of a sovereign. And it must be observed here, with regard to things, of institution and custom, that, when a practice is so established, as to impart, according to the usages and manners of the age, a real value and a settled signification to things which are in their own nature indifferent, the natural and necessary law of nations requires that we should pay deference to such institution, and act, with respect to such things, in the same manner as if they really possessed all that value which the opinion of mankind has annexed to them. For instance, according to the general usage of all Europe, it is the peculiar prerogative of an ambassador to wear his hat in presence of the prince to whom he is sent. This right expresses that he is acknowledged as the representative of a sovereign: to refuse it, therefore, to the ambassador of a state which is truly independent, would be doing an injury to that state, and, in some measure, degrading it. The Switzers, who formerly were much deeper adepts in the art of war than in the etiquette of courts, and far from being punctilious on the score of mere ceremony, have, on some occasions, submitted to be treated in a manner unbecoming the dignity of their nation. In 1663, their ambassadors suffered the king of France, and the nobles of his court, to refuse them those honours which custom has rendered essential to the ambassadors of sovereigns, and particularly that of being covered before the king at their audience.1 Some of their number, who knew better what they owed to the glory strongly insisted on that essential and distinctive honour; but the opinion of the majority prevailed, and at length they all yielded, on being assured that the ambassadors of their nation had not worn their hats in presence of Henry the Fourth. Allowing the fact to have been true, the argument was not unanswerable. The Switzers might have replied, that in Henry's time their nation was not yet solemnly acknowledged free and independent of the empire, as it had lately been by the treaty of Westphalia in 1648. They might have said, that, although their predecessors had not been duly attentive to support the dignity of their sovereigns, that gross error could not impose on their successors any obligation to commit a similar one. At present, as the nation is more enlightened, and more attentive to points of that nature, she will not fail to support her dignity in a more becoming manner. Whatever extraordinary honours may, in other respects, be paid to her ambassadors, she will not, in future, suffer herself to be so far blinded by those empty marks of distinction, as to overlook that peculiar prerogative which custom has rendered essential. When Louis the Fifteenth visited Alsace, in 1744, the Helvetic body declined sending ambassadors to compliment him according to custom, until informed whether they would be allowed to wear their hats: and on the refusal of that just demand, none were sent. Switzerland may reasonably hope that his most Christain majesty will no longer insist on a claim which does not enhance the lustre of his crown, and can only serve to degrade an ancient and faithful ally.
(192) An ambassador may annul a treaty, see authorities collected in 1 Chitty's Commercial Law, 46. In the event of his nation rejecting a person sent by the friendly nation as consul, he is to assign the reasons and request the appointment of another consul. Id. 55. In his absence a consul of his nation may demand an audience with the minister of the friendly state, (Id. 63), although a consul has not the same privileges as an ambassador in other respects, Id, 70. The children of an ambassador and of his attendants, though born in a foreign state, are considered natural-born subjects. Id. 110, 112. An ambassador from a foreign court, formerly, could not come into England without a license and safe-conduct. Id. 131. He is the proper person to grant a passport. Id. 492. The ambassador of an enemy at a neutral court may recover and insist on having restored despatches sent by a neutral vessel, and captured by an enemy; and he is peculiarly an object of the protection and favour of the law of nations. Id. 461-2; The Caroline, 6 Rob. Rep. 461; The Madison, 1 Edw. R. 224.
As respects an ambassador or minister in Great Britain, this is declared and enforced by 7 Anne, c. 12; see the decisions thereon. Chitty's Col. Stat. 13; Novello v. Toogood, 1 Barn. & Cres. 554, 2 Dowl. & Ryl. 833, S.C.; and 13 Price Rep. 805. And a servant of a foreign minister, though not lodging in his house, is protected by that act. In re Count Haslang. Dick 274, But a plaintiff under such protection of a foreign ambassador has been compelled to give security for costs before he will be allowed to proceed. Adderly v. Smith, Dick 355. Put that act does not extend to consuls, who are therefore, liable to arrest. Vivearls v. Belcher, 3 Maule & Selwyn, 284. — C.
(193) Ante, 147 and 459.
1. In Wicquefort, may be seen a particular account of the whole transaction. That writer is justifiable in expressing a degree of indignation against the Swiss ambassadors; but he ought not to have insulted the whole nation by coarsely asserting that "they prefer money to honour." Ambassador, book i. § 19. See also 18.
THE respect which is due to sovereigns should redound to their representatives, and especially their ambassadors as representing their master's person in the first degree. Whoever offends and insults a public minister commits a crime the more deserving of severe punishment, as he might thereby involve his country and his sovereign in very serious difficulties and trouble. It is just that he should be punished for his fault, and that the state should, at the expense of the delinquent, give full satisfaction to the sovereign who has been offended in the person of his minister. If the foreign minister is himself the aggressor, and offends a citizen, the latter may oppose him without departing from the respect due to the character which the offender bears, and give him a lesson which shall both efface the slain of the outrage, and make the author of it blush for his misconduct. The person offended may further prefer a complaint to his own sovereign, who will demand for him an adequate satisfaction for the minister's master. The great concerns of the state forbid a citizen, on such occasions, to entertain those thoughts of revenge which the point of honour might suggest, although they should in other respects be deemed allowable. Even according to the maxims of the world, a gentleman is not disgraced by an affront for which it is not in his own power to procure satisfaction.
The necessity and right of embassies being established (see Chap. V. of this Book), the perfect security and inviolability of ambassadors, and other ministers, is a certain consequence of it: for, if their persons be not protected from violence of every kind, the right of embassy becomes precarious, and the success very uncertain. A right to the end inseparably involves a right to the necessary means. Embassies, then, being of such great importance in the universal society of nations, and so necessary to their common well-being, the persons of ministers charged with those embassies are to be held sacred and inviolable among all nations. (See Book II. § 218.) Whoever offers violence to an ambassador, or to any other public minister, not only injures the sovereign whom that minister represents, but also attacks the common safety and well-being of nations: he becomes guilty of an atrocious crime against mankind in general.1
This safety is particularly due to the minister, from the sovereign to whom he is sent. To admit a minister, to acknowledge him in such character, is engaging to grant him the most particular protection, and that he shall enjoy all possible safety. It is true, indeed, that the sovereign is bound to protect every person within his dominions, whether native or foreigner, and to shelter him from violence: but this attention is in a higher degree due to a foreign minister. An act of violence done to a private person is an ordinary transgression, which, according to circumstances, the prince may pardon: but if done to a public minister, it is a crime of state, an offence against the law of nations; and the power of pardoning, in such case, does not rest with the prince in whose dominions the crime has been committed, but with him who has been offended in the person of his representative. However, if the minister has been insulted by persons who were ignorant of his character, the offence is wholly unconnected with the law of nations, and falls within the class of ordinary transgressions. A company of young rakes, in a town of Switzerland, having, in the night-time, insulted the British minister's house, without knowing who lived in it, the magistracy sent a message to the minister to know what satisfaction he required. He prudently answered, that it was the magistrates' concern to provide for the public safety by such means as they thought best; but that, as to his own part, he required nothing, not thinking himself affronted by persons who could have had no design against him, as not knowing his house. Another particular circumstance, in the protection due to foreign ministers, is this: — according to the destructive maxims introduced by a false point of honour, a sovereign is under a necessity of showing indulgence to a person wearing a sword, who instantly revenges an affront done to him by a private individual: but violent proceedings against a public minister can never be allowed or excused, unless where the latter has himself been the aggressor, and, by using violence in the first instance, has reduced his opponent to the necessity of self-defence.
Though the minister's character is not displayed in its full extent, and does not thus insure him the enjoyment of all of his rights, till he is acknowledged and admitted by the sovereign, to whom he delivers his credentials, — yet, on his entering the country to which he is sent, and making himself known, he is under the protection of the law of nations; otherwise, it would not be safe for him to come. Until he has had his audience of the prince, he is, on his own word, to be considered as a minister; and besides, exclusive of the notice of his mission, usually given by letter, the minister has, in case of doubt, his passports to produce, which will sufficiently certify his character.
These passports sometimes become necessary to him in the countries through which he passes on his way to the place of his destination; and, in case of need, he shows them, in order to obtain the privileges to which he is entitled. It is true, indeed, that the prince alone to whom the minister is sent, is under any obligation, or particular engagement to insure him the enjoyment of all the rights annexed to his character. Yet the others through whose dominions he passes are not to deny him those regards to which the minister of a sovereign is entitled, and which nations reciprocally owe to each other. In particular they are bound to afford him perfect security. To insult him would be injuring his master, and the whole nation to which he belongs: to arrest him, and offer him violence, would be infringing the right of embassy, which belongs to all sovereigns (§§ 57-63). The French monarch, Francis the First, had therefore very good reason to complain of the murder of his ambassador, Rincon and Fregose, as an atrocious violation of public faith and the law of nations. Those two ministers, the one destined for Constantinople, the other for Venice, having embarked on the Po, were stopped and murdered; and, according to all appearances, the deed had been perpetrated by order of the governor of Milan.2 The emperor Charles the Fifth, having taken no pains to discover the persons concerned in the murder, authorized a belief that he had himself ordered it, oral least that he tacitly approved of the act after its commission. And, as he did not give any suitable satisfaction for it, Francis had a very just cause for declaring war against him, and even calling for the assistance of all other nations: for an affair of this nature is not a private dispute, a doubtful question, in which each party pretends to have justice on his side: it is a quarrel which involves the concern of all nations, since they are all equally interested in maintaining the sacred inviolability of that right, and of those means which enable them to hold communication with each other, and to treat of their affairs. If an innocent passage, and even perfect security are due to a private individual, much more are they due to the minister of a sovereign, who is going to execute his master's orders, and who travels on the affairs of a nation. I say, "an innocent passage;" for the minister's journey is justly suspected, if a sovereign has reason to apprehend that he will make an improper use of the liberty granted him of entering his territories, by plotting against his interests while in the country, or that he is going to convey intelligence to his enemies, or to stir up others against him. We have already said (§ 64) that he may in such case refuse him a passage: but he is not to maltreat him, nor suffer any violence to be offered to his person. If he has not reason sufficient for denying him a passage, he may take precautions against the abuse which the minister might make of it. These maxims the Spaniards found established in Mexico and the neighbouring provinces. In those countries, ambassadors were respected throughout their whole journey: but they could not deviate from the high road without forfeiting their rights3 — a prudent and judicious reservation, introduced as a guard against the admission of spies under the name of ambassadors. Thus, while the negotiations for peace were carried on at the famous congress of Westphalia, amid the dangers of war and the din of arms, the several couriers sent or received by the plenipotentiaries had each his particular route designated; and, out of the prescribed tract, his passport could afford him no protection.4
What we have here observed relates to nations that are at peace with each other. On the breaking out of a war, we cease to be under any obligation of leaving the enemy in the free enjoyment of his rights: on the contrary, we are justifiable in depriving him of them, for the purpose of weakening him, and reducing him to accept of equitable conditions. His people may also be attacked and seized wherever we have a right to commit acts of hostility. Not only, therefore, may we justly refuse a passage to the ministers whom our enemy sends to other sovereigns; we may even arrest them if they attempt to pass privately, and without permission, through places belonging to our jurisdiction. Of such proceeding the last war furnishes a signal instance. A French ambassador, on his route to Berlin, touched, through the imprudence of his guides, at a village within the electorate of Hanover, whose sovereign, the king of England, was at war with France. The minister was there arrested and afterwards sent over to England. As his Britannic majesty had in that instance only exerted the rights of war, neither the court of France nor that of Prussia complained of his conduct.
The reasons which render embassies necessary, and ambassadors sacred and inviolable, are not less cogent in time of war, than in profound peace. On the contrary, the necessity and indispensable duty of preserving some resource by which the minds of the belligerent parties may be brought to a mutual understanding, and peace be restored, is a fresh reason why the persons of ministers, as instruments in the preliminary conferences and final reconciliation, should be still more scared and inviolable. Nomen legati, says Cicero, ejusmodi esse debet, quod, non modo, inter sociorum jura, sed etiam inter hostium tela, incolume versetur.5 Accordingly, one of the most sacred laws of war is that which insures perfect security to persons who bring messages or proposals from the enemy. It is true, indeed, that the ambassador of an enemy must not approach without permission: and as there does not always exist a convenient opportunity of obtaining such permission through the medium of neutral persons, the defect has been supplied by the establishment of certain privileged messengers for carrying proposals from enemy to enemy, in perfect safety.
The privileged messengers I allude to are heralds, trumpeters, and drummers, who, from the moment they make themselves known, and as long as they confine themselves within the terms of their commission, are, by the laws of war and those of nations, considered as sacred and inviolable. This regulation is absolutely necessary; for, exclusive of the duty incumbent on us to reserve the means of restoring peace (as above mentioned), there occur, even during the course of the war, a thousand occasions, when the common safety and advantage of both parties require that they should be able to send messages and proposals to each other. The institution of heralds succeeded that of the Roman feciales: at present, however, they are seldom employed: drummers or trumpeters are sent, and after them, according to the exigence of the occasion, ministers, or officers furnished with powers. Those drummers and trumpeters are held sacred and inviolable; but they are to make themselves known by the marks peculiar to them.(198) Maurice, prince of Orange, highly resented the conduct of the garrison of Ysendick, who had fired at his trumpeter: on which occasion the prince observed that no punishment can be too severe for those who violate the law of nations. Other instances may be seen in Wicquefort, and particularly the reparation which the duke of Savoy, as general of Charles the Fifth's army, caused to be made to a French trumpeter, who had been dismounted and despoiled by some German soldiers.6
In the wars of the Netherlands the duke of Alva hanged up a trumpeter belonging to the prince of Orange, saying that he was not obliged to allow safety to a trumpeter sent him by the chief of the rebels,6 On this, as on many other occasions, that sanguinary general was undoubtedly guilty of a flagrant violation of the laws of war, which, as we have proved above (Book III. Chap. XVIII.), ought to be observed even in civil wars: for, unless both parties can with perfect safety interchange messages, and reciprocally send confidential persons to each other, how can they, on those unfortunate occasions, ever come to talk of peace? What channel remains open for negotiating a salutary accommodation? The same duke of Alva, in the war which the Spaniards afterwards made on the Portuguese, whom they also termed rebels, caused the governor of Cascais to be hanged for having given order to fire on a trumpeter sent to demand a surrender of the town.7 In a civil war, or when a prince takes up arms for the purpose of subduing a body of people who think themselves absolved from their allegiance to him, an attempt to compel the enemies to respect the laws of war, while he himself does not observe them on his own part, is in fact equal to a determined resolution of carrying those wars to the extreme of cruelty, and converting them into a scene of inordinate and endless murder, by the long series of mutual retaliations which