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. here, on the threshold of the terrible code of war, as indeed throughout the whole system of International Jurisprudence, we are met by this cardinal maxim, viz., that the opinions and feelings of the individual citizen are, so far as foreign States are concerned, bound up in the declarations and acts of the Government of his country. The jus iniquum (p) of one State is to be encountered by the retorsio legis et juris of another (9). "Quod quisque in alterum statuerit, ut ipse eodem jure utatur," is the maxim of jurisprudence applicable to this case. In other words, Retorsion is the remedy for these departures from Comity. How and in what manner the Retorsion shall be effected,-whether by withdrawing reciprocal, analogous, or other privileges from the subjects of the offending State, is a matter rather of International, than of Public Law (r). (p) For the distinction between jus iniquum and injustitia, vide post. (q) Klüber, s. 234, n. d. "Die Retorsion ist eine Reaction gegen eine Iniquität (jus iniquum), die Repressalien gegen eine Ungerechtigkeit (injustitia)."-Heffters, s. 111, note. (r) Vide ante, vol. i. p. 13. CHAPTER II. REPRISALS. VIII. RETORSION, we have seen, is a vindication of offended COMITY (a). But even an injury done to the Rights, stricti juris, of a State, may be vindicated by the employment of a kind of force, which nevertheless falls short of war, and the use of which is, and has always been held to be, compatible with the maintenance of general pacific relations. Such a vindication may be sought and obtained through the medium of Reprisals. "Observa," Bynkershoek says, "Repressaliis locum non esse nisi in pace" (b). 66 IX. It must be remembered, that as the Rights of a State partly respect the collective capacity of the State, its Government or its Representative, partly the individuals of which it is composed, so a State may be injured in two ways, either directly, by a violation of the Right affecting its collective capacity, or indirectly (c) by a violation of the Right of the individual to whom it owes protection, in return for his allegiance. For it is to be borne in mind that individuals have committed the defence of themselves to the State of which they are members, and, having done so, they are not entitled to redress their own injuries, or, to use a common but expressive phrase, "to take the law into their own hands." The principle of law which forbids this course is thus laid down in (a) Heffters, s. 110. 66 66 the Digest: "Non est singulis concedendum, quod per magistratum publicè possit fieri, ne occasio sit majoris "tumultûs faciendi " (d). This important doctrine is enforced by a judgment of Lord Stowell, in which he says, "It is a wild conceit, that wherever force is used, it may be lawfully resisted. A lawful force cannot be lawfully re"sisted. The only case where it can be so is in the state of "war and conflict between two countries, where one party "has a perfect right to attack by force, and the other an equal right to resist by force. But, in the relative situa"tion of two countries at peace with each other, no such "conflicting rights can possibly co-exist" (e). 66 And it is also to be observed that force is substituted for law, whenever redress is sought otherwise than judicially, (including under this term, in International Law, remonstrance by Governments,) even though no injury be inflicted upon person or property. It is well said in the Roman Law, "Tu vim putas esse solum si homines vulnerentur; vis est "tunc, quoties quis id, quod deberi sibi putat, non per "judicem reposcit " (ƒ). X. (g) It most commonly happens that Reprisals are re (d) Dig. L. t. xvii. s. 176. (e) The Maria, 1 Robinson, Adm. Rep. pp. 360–1. The Marianna Flora, 11 Wheaton's (Amer.) Rep. 56. (f) Dig. iv. ii. 13. (g) Grotius, 1. iii. c. ii., Quomodo Jure Gentium bona subditorum pro debito Imperantium obligentur : ubi de Repressaliis, ss. 4, 5, 6, 7. Wolff, Jus Gentium, c. v. ss. 589-606. Bynkershoek, Q. J. P. c. xxiv. See, too, notes to Mr. Du Ponceau's (American) translation. (Philadelphia, 1810.) Ib. De For. Leg., c. xxii. Vattel, 1. ii. c. xviii. ss. 342–354. Valin, Ordonnance de la Marine, 1. iii. t. x., Des Lettres de Marque, on de Représailles. De Martens, 1. viii. c. ii. 260. Zouch, p. 120, on Repræsaliæ sint licitæ. Sir L. Jenkins, ii. pp. 718, 721-2, 759, 763, 778. Wheaton, Elem. i. 4me Pue ch. ii. Manning, L. of N. c. iii. Kent, Comm. i. pp. 56-8. |