pœnas poscendi non tantum ob injurias in se aut subditos suos commissas, sed et ob eas quæ ipsos peculiariter non tangunt, sed in quibusvis personis jus naturæ aut gentium immaniter violant." This right he derives from a similar right of individuals in a state of nature which they gave up to society. He adds that it is more praiseworthy to punish injuries done to others than to ourselves, inasmuch as we are then less likely to be partial.

Few, if any, we suppose, would now undertake to defend the explanation here given by Grotius of the state's right to punish; and the extent which he gives to the right seems equally objectionable. There must be a certain sphere for each state, certain bounds within which its functions are intended to act, for otherwise the territorial divisions of the earth would have no meaning. In regard to the right of punishing in any case outside of the bounds of the state there may be rational doubts. Admitting, as we are very ready to do, that this is one of the powers of the state over its subjects, we can by no means infer that the state may punish those who are not its subjects, but its equals. And yet, practically, it is impossible to separate that moral indignation which expresses itself in punishment from the spirit of self-redress for wrongs. As for a state's having the vocation to go forth, beating down wickedness, like Hercules, all over the world, it is enough to say, that such a principle, if carried out, would destroy the independence of states, justify the nations in taking sides in regard to all national acts, and lead to universal war. And yet extreme cases of outrage may be conceived of, where a burning desire to help the weak abroad, or to punish the oppressor, ought hardly to be disobeyed.

§ 20 b.

beyond Relations of a state

to

The inquiry, whether a state has a right to punish its own limits, leads us to the more general and practically important inquiry, whether a state is bound to aid other states in the maintenance of general justice, that is, of what it considers to be justice. The prevalent view

general justice.

seems to have been that, outside of its own territory, including its ships on the high seas, and beyond its own relations with other states, a state has nothing to do with the interests of justice in the world. Thus laws of extradition and private international law are thought to originate merely in comity. (§§ 73, 78.) Thus, too, crimes committed by its own citizens abroad it is not bound to notice after their return home. Thus, again, contraband trade is held not to begin within the neutral's borders, and outside of them, as on the high seas, concerns the belligerent alone. (§ 193.) And again, when a nation commits a gross crime against another, third parties are not generally held to be bound to interfere. This is the most received, and may be called the narrow and selfish view. On the other hand, the broad view, that a state must aid in getting justice done everywhere, if its aid be invoked, and even without that preliminary, would occasion more violence than could thus be prevented. Such a proceeding, too, would be unjust, as overruling the judgments of the lawful authority. But there is a middle ground on which the theory of international obligation can be rationally placed. (1.) As already said in § 20 a, the interests of justice require that the state, like every moral person, shall have its special sphere of action, within which it may not be invaded, except in extreme and outrageous cases, which cases are contemplated by the actual law of nations. (§§ 43, 51, 116, end.) (2.) The moral being, much more the state, which, as a member of a community of nations, is interested in the prevalence of justice everywhere, and is the only ultimate asylum of it when attacked,

is bound to aid in maintaining justice even outside of its own sphere, if this aid can be so rendered as to violate no higher and more permanent rules of justice. (3.) In those cases where another state either invokes or does not object to its aid, a state, if its own judgment is clear on the right of the case, may lend its assistance. (4.) When this aid to foreign justice can be rendered within its own territory the obligation is clear, and thus the extradition of criminals, contrary to what is usually taught, and to the opinion expressed in the first

edition of this work, cannot with propriety be refused in certain cases. ($77.) (5.) Private international law must have its origin in justice and not in comity, so that nations, if they can only find out what the principles of justice here are, ought to adopt them. (6.) Some questions, as whether a state is bound to aid foreign custom-house laws by preventing smuggling, and how far a neutral ought to prevent contraband trade of its subjects and from its ports, are beset with special difficulties. Of the latter we shall speak hereafter. (§ 193, note.) Of the former, we may say that a tariff may be unreasonable and deleterious to the interests of other states and thus unjust; it cannot be expected that aid can be given in such a case. But where a tariff is admitted to be reasonable, since it is a necessity and is rightfully imposed; to break such laws by smuggling is immoral, and a nation ought, if not to restrain its people from so doing, at least not to encourage or to screen from penalties those who violate foreign law. In such cases the neglect of justice avenges itself by the lawlessness of those who are trained up in the flagitious trade.1

§ 21.

any right of

4. Natural justice knows nothing of a right of conquest in the broad sense of that term, that is, of mere superior 4. Is there force, carrying with it the license to appropriate ter- conquest? ritory, or to destroy national life. Yet, in fact, nations accept, if they do not justify, such a right of conquest. The reasons for this are, in general, derived from the rule, that it is officious and impossible for nations to sit as judges over each other's conduct, or in other words, from the independence of nations. (§§ 37, 115.) But more particularly (1.) in the exercise of the right of redress it may be necessary to strip a wrong-doer of a portion of his territory; or in the exercise of the right of self-protection, and, possibly, of punishment, it may be lawful to deprive him of the means of doing evil. (2.) The spirit of conquest generally urges one of these pleas in its defense, over the validity of which, as we have said, nations may not

1 Compare R. v. Mohl in a monograph in his Staatsr. Völkerr. u. Politik, vol. i.

sit in judgment. (3.) Treaties generally perfect the title which possession or conquest begins. (4.) When a settled state of things follows a conquest, it is usually acquiesced in, because, as has been seen, if nations repaired each other's wrongs, the way would be open for perpetual war. Thus international law acknowledges the fact of conquest after it has become a permanent fact in the world's history, and in some degree, the right also.

Yet the mere fact of having occupied territory or subjugated its inhabitants, can be no sufficient ground in justice, even in a just war, for the exercise of the right of conquest. Redress and punishment ought not to exceed due limits, nor ought selfprotection to demand an exorbitant amount of security. In accordance with this the spirit of conquest is regarded by the nations as the spirit of robbery, and as hostility to the human race. This is shown by their combinations to resist it, as in the wars against Louis XIV. and Napoleon; by their protests against acquisitions regarded as unjust, and against alliances formed for the injury of weak states; by the pretexts with which aggressors seek to shield themselves from the condemnation of the world; and by the occasional consent of victorious nations to give a price for territory acquired in war; as when the United States paid a sum of money to Mexico for lands ceded at the peace of 1848.1

1 The Abbé de Mably, on this subject, uses the following language: "A prince is doubtless in the right in conquering a province which belongs to him, and of which the restitution is refused. He can, even, to punish his enemy for his injustice and to recompense himself for the expenses of war which he has been forced to make, extend his conquests beyond the country which he claims as his own. But arms, of themselves, give no title; they suppose an anterior one, and it is to try this contested right that the war is waged. Were it otherwise, a prince despoiled by his enemy would no longer have any right to the countries which have been taken from him, and hence it would be ridiculous for the victor to demand a cession from him in treaties of peace. We may add here a very simple argument if conquests by their nature form a legitimate right of possession to the conqueror, it is indifferent whether the war be undertaken on just or unjust grounds." - Droit Public, vol. i., part 2, 109, ed. of Amsterdam of 1777.

§ 22.

states, or du

al claims.

Moral claims and duties, being to a great extent determined by the special circumstances of the case, cannot be so Moral relaeasily defined and enforced as rights and obligations; tions of and opinions in regard to them vary with the varying moral feelings of individuals, of countries, and of ages. Hence with the increase of culture, and the greater sway of pure religion, the influence of moral ideas over nations enlarges. No cause has had greater efficacy in producing changes in international law than this, of which the improvements in the laws of war, and in the treatment of individuals out of their own country, are good illustrations. The rules drawn from this source are less capable of being reduced to a theory than those deducible from jural relations.

§ 23.

One or two recognized branches of duty between nations deserve a brief notice.

Particular

duties.

1. The duty of humanity, including hospitality. 1. HumanThis duty spends itself chiefly in the treatment of ity. individuals, although suffering nations or parts of nations may also call for its exercise. The awakened sentiment of human

ity in modern times is manifested in a variety of ways, as by efforts to suppress the slave trade, by greater care for captives, by protection of the inhabitants of a country from invading armies, by the facility of removing into a new country, by the greater security of strangers. Formerly, the individual was treated as a part of the nation on whom its wrongs might be wreaked. Now this spirit of war against private individuals is passing away. In general any decided want of humanity arouses the indignation even of third parties, excites remonstrances, and may call for interposition. (Comp. §§ 21, 51.) But cruelty may also reach beyond the sphere of humanity; it may violate right, and justify self-protection and demand for redress.