sidered the number and magnitude of the revolted States, each as large, or larger, than most European kingdoms, armies in the field greater than, with few exceptions, had ever before been arrayed against each other, a blockade of unprecedented extent pressing most severely on the commercial welfare of the rest of the world; and above all, when it is remembered that these very United States, when they revolted from England (of whom they were, in 1773, as much the subjects, as in 1861 the Confederate States were of them), formed alliances, offensive and defensive, with European States against England. These were, however, in 1863, the "Resolutions of Congress upon foreign media"tion" (f): - "Whereas it appears from the diplomatic correspondence "submitted to Congress, that a proposition, friendly in form, "looking to pacification through foreign mediation, has been "made to the United States by the Emperor of the French, "and promptly declined by the President; and whereas the "idea of mediation or intervention in some shape may be re"garded by foreign Governments as practicable, and such "Governments, through this misunderstanding, may be led to "proceedings tending to embarrass the friendly relations "which now exist between them and the United States; "and whereas, in order to remove for the future all chance "of misunderstanding on this subject, and to secure for the "United States the full enjoyment of that freedom from "foreign interference which is one of the highest rights of permission of the President, through the Secretary of the Treasury, or proceeding to any of said States, with the exceptions aforesaid, by land or water, together with the vessel or vehicle conveying the same, or conveying persons to or from the said States, with said exceptions, will be forfeited to the United States, and that, from and after fifteen days from the issuing of this Proclamation, all ships and vessels belonging, in whole or in part, to any citizen or inhabitant of any of said States, with said exceptions, found at sea or in any part of the United States, will be forfeited to the United States." August 16, 1861.-Mc Pherson's History of the Rebellion (1860-1865), p. 149. (f) Third Session, Thirty-seventh Congress. "independent States, it seems fit that Congress should "declare its convictions thereon. Therefore, resolved (the "House of Representatives concurring), that while, in times "past, the United States have sought and accepted the "friendly mediation or Arbitration of foreign Powers for "the pacific adjustment of International questions, where "the United States were the party of the one part and "some other sovereign Power the party of the other part; "and while they are not disposed to misconstrue the natural "and humane desire of foreign Powers to aid in arresting "domestic troubles, which, widening in their influence, have "afflicted other countries, especially in view of the circum"stance, deeply regretted by the American people, that the "blow aimed by the rebellion at the national life has fallen "heavily upon the labouring population of Europe; yet, "notwithstanding these things, Congress cannot hesitate to "regard every proposition of foreign interference in the "present contest as so far unreasonable and inadmissible, "that its only explanation will be found in a misunderstand"ing of the true state of the question, and of the real cha"racter of the War in which the Republic is engaged. "That the President be requested to transmit a copy of "these resolutions, through the Secretary of State, to the "Ministers of the United States in foreign countries, that "the declaration and protest herein set forth may be com"municated by them to the Government to which they are "accredited" (g). But if the nature of this War supplies an excuse for the non-application of the principle of International Arbitration, what is to be said of France and Prussia, whose accredited representatives did subscribe the Protocol and the Treaty, and who have since not only not resorted to, but instantly refused an Arbitration tendered by wholly (g) McPherson's History of the Rebellion (1860-1865), published at Washington, 1865, p. 346. disinterested and neutral States? The fact is, neither France nor Prussia would have submitted to a sentence of Arbitrators which decided against them. The tribunal is yet to be formed, before which independent States will plead in such a case, or submit, if they do plead, to the sentence. Alabama Claims-réclamations de l'Alabama— are-whether the result be or be not favourable to the institution of International Arbitration Courts-a very different thing (h). V. Lastly, it must be remembered that, as in the litigation of individuals, if one of the parties refuse to submit to the award of the Arbitrator, a compulsory process is put in motion against him; so, in the litigation of States, if the decision of the umpire State be resisted by the plaintiff or defendant State, war must be resorted to, in order to compel the obedience of the recusant to the decree; though the umpire cannot be compelled, even under these circumstances, to become a belligerent. VI. There remains a question of much importance :--May a State be compelled to make peace by THIRD Powers? The question applies to two hypotheses, not immaterially different. For the State may have accepted an Arbitration, and the award, which must, of course, be presumed to have been fairly conducted, may have been given against her; or the State may not be under this selfimposed obligation, and may have altogether refused Arbitration. In both cases the general principles of International Law answer the question in the negative, though with less confidence in the former than in the latter hypothesis. Bynkershoek (i) says, that it is as unjust to compel a State to make peace, as to compel it to make war. Such compulsion, he observes, was used by England, Sweden, and Holland, who bound themselves by Treaty, on the 23rd (h) Vide post, c. ix. on Neutrals. January, 1668, to force the Spaniards and the French, who were at war with each other, to make peace upon certain conditions; and thus these two nations were compelled to make peace. Before this event, on the 21st May, 1659, the French, English, and Dutch compelled Sweden to make peace with Denmark, and thereby prevented the total ruin of the latter country. The pretext, as Bynkershoek calls it, for these interferences on the part of third Powers, was the general welfare of Europe. In the former case the undue aggrandisement of France, in the latter, the undue aggrandisement of Sweden, was prevented. Bynkershoek, however, says, that under the pretence of preserving peace, these forcible interventions violated International justice. His words are remarkable : 66 66 "His injuriis prætexitur studium conservandæ pacis, quod et ipsum prætexitur injuriis longè adhuc majoribus, quæ potissimùm ab aliquot retrò annis invaluerunt, quum nempe Principes mutuis Pactis de aliorum Principum Regnis et Ditionibus ex animi sententiâ statuunt, atque si "de re suâ statuerent. Has injurias peperit, et adhuc parit Ratio, quam vocant Status (k), quam ipse definio, "Monstrum horrendum, informe, ingens, cui lumen ademptum. "Huic monstro si semel cedas, semelque tibi indulgeas, "aliena non alio loco habere, quam tua, jam frustra est " omnis Disputatio de Jure Gentium et Publico." (1) 66 The sincerity of the motives of the interfering Powers may be always questioned; and it is clear that for this, as well as for other and weightier reasons, such compulsory interference is liable to the gravest objections, as infringing the sacred principle of national independence. Whether, however, and how far, and when, the necessities of preventive (k) Bynkershoek's horror of the Reason of State is again vigorously expressed in the tenth chapter of the second book of the Q. J. P., where he calls it, "bellua illa multorum capitum." Vide ante, vol. i. (1) Q. J. P., l. i. c. xxv. s. 10. Self-defence, also a sacred national right, may justify such a course, has been treated of at length in the Chapter on INTERVENTION, in a former part of this work (m). VII. If Negotiation and Arbitration fail, there remain certain measures to be taken viâ facti, which yet fall short of open war. There are certain means of redress which, though tinged with a hostile character, and though often but the train which awaits only a spark to be kindled into the full blaze of open war, are, nevertheless, not in themselves inconsistent with the maintenance of peace. We have already (n) seen that the class of acts which militate against kindness, courtesy, generosity, or gratitude are not those for which the Law, either in the case of the Individual or the State, can afford a definite relief or a positive redress. We have, however, also seen that, in the case of States, the confines of COMITY and RIGHT are often separated by a very fine, and sometimes a scarcely perceptible, line of demarcation. These are cases in which long usage has given a colour to the axiom, Mos pro lege (o); and where the abrupt withdrawal of liberties and facilities, originally the fruit of indulgence and concession, without due premonition to the parties interested, is clearly a tortious and illegal act, for which reparation may, if necessary, be exacted by force. A concession of Comity, secured by Treaty, stands, of course,-until suspended or destroyed by open war between the two States,--upon the footing of clear and positive Right. But as a general rule, violations of COMITY are not the subjects of a just or necessary war. Their redress, if remonstrance have failed, is to be sought in a corresponding reciprocity of practice upon the part of the injured State towards the Government and the inhabitants of the injuring State; for (m) Vol. i. pt. iv. c. i. (n) Vide ante, vol. i. pp. 12, 13. (0) Vide ante, vol. i. pp. 182-3. |