BOOK IV.

OF WAR.

CHAPTER I.

OF THE RIGHT OF MAKING WAR.

war.

ALTHOUGH the word war is in such common circulation, Definition of yet it is not easy to give an exact limitation of this term as strictly used in the Law of Nations, and entailing certain results and liabilities from the fact of its existence. For war does not exist merely on the suspension of the usual relations of peace, there being many occasions wherein the intercourse of States is interrupted that do not constitute the relation of war. Thus, in 1753, Spain and Denmark respectively interdicted their subjects from all commerce with the other State, (1) on account of some differences regarding the Danish trade with Morocco, and this suspension continued for four years, but it was not a state of war. Again, in 1793, the Emperor of Russia broke off all communication with France; declared the treaty of 1786 to be suspended; forbade all French vessels to enter his ports, and banished from his dominions all French of both sexes, excepting those who would take an oath abjuring the principles of the French Revolution; (2) but though the usual relations of peace were thus suspended, yet it was not a state of war. According to Albericus Gentilis, "Bellum est publicorum armorum justa conten

(1) De Martens, Rec. Supp. II. 14-17.

(2) Id. Rec. v. 408.

tio;" (1) and Bynkershoek says, "Bellum est eorum, qui suæ potestatis sunt, juris sui persequendi ergo, concertatio per vim vel dolum;" (2) and Vattel defines war as "that state in which we prosecute our rights by force;" (3) but unhappily there have been too many wars undertaken for the pursuit of no right, and without a shadow of justice for their excuse, to allow either of these definitions to stand. Grotius defines war as "the state of those contending by force;" (4) and Hobbes says, "war is nothing else but that time wherein the will and intention of contending by force is either by words or actions sufficiently declared." (5) But neither of these definitions will hold good, because there are a variety of instances in which States contend by force that do not constitute war. Reprisals, for instance, and embargoes, are both forcible measures of redress, but they do not constitute war; and when States send auxiliary forces under special treaties, they contend by force, but there is no war, although thousands of subjects may be destroyed on either side. In the truce for ten years, concluded in 1470, between Henry VI. and Louis XI., it was declared, that should either party surprise any town or castle of the other, the latter might besiege or assault the same, or gain it in any other forcible manner, without the truce being thereby broken or infringed (rompez ne enfrainz), and the party injured was to recover from the other the amount of the damage sustained by the surprisal. (6) Thus, there are various cases in which force is used for special purposes, and under certain stipulations, where no war takes place; but when there is an indeterminate state of violence, then there is war; in the words

(1) De Jure Belli, lib. I. c. II. (2) Quæst. Jur. Pub. lib. I.

C. I.

(3) Liv. III. ch. 1. § 1.

(4) De Jure, lib. I. c. 1, § 2.

(5) De Corpore Politico, P. I. C. I. § 2.

(6) Dumont, Corps Dip. III. I. 601.

of De Martens, "la guerre est un état permanent de violences indéterminées entre les hommes." (1) War may, therefore, be defined to be the condition of States between which there is an interruption of all pacific relations, and a general contention by force, authorized by the sovereign of the several States.

Nations being in a state of nature with respect to each other, and having no common superior to whom they may appeal for the settlement of their differences, have no means of securing their rights, where peaceable negotiations fail to obtain them, but redress or defence by forcible means. Some authors have thought it necessary to enter at length upon the question whether any appeal to force is ever justifiable, and whether a quakerlike submission to any wrong is not incumbent upon States; but, without occupying time with such discussions, I may perhaps be allowed to take it for granted, that there may be some occasions that justify appeal to arms. By the Law of Nature no such submission to violence is required; to the people of Israel, wars were permitted and enjoined under Divine dispensation, and by our Christian faith no injunction, express or implied, was given to that purport; although, doubtless, the principles of Christianity, by commanding an abstinence from wrong-doing, would, if pursued universally, make appeal to arms unnecessary, and banish war from the list of human evils. That war may be sometimes necessary, and therefore sometimes justifiable, in the present state of mankind, appears incontrovertible; and the questions regarding it would be of easy solution, if it were only when war was necessary that arms were employed. Unhappily, the blood that has been shed in the prosecution of right is quite inconsiderable, when compared with that which has been lavished from law

(1) Précis du Droit des Gens, liv. III. ch. II. § 263.

less aggression, or the unjustifiable grasping of individual ambition.

Besides the obvious case where actual or threatened

aggression justifies appeal to arms as a means of selfdefence, there are many cases in which war may be necessary, and therefore just; but I do not find any general rules, laid down by any writers, that are satisfactory in ascertaining when such justificatory occasions take place. General rules for political action are too frequently either needless because obvious, or useless because they afford no additional light, but still leave each individual question to be determined by its own bearings. Thus, that there are occasions in which the affairs of neighbouring States render appeal to arms necessary, cannot be doubted. When the French Convention announced themselves as the enemies of all constituted authorities, and proclaimed, in November, 1792, that "they would grant fraternity and succour to any people who were disposed to recover their liberty," (1) it cannot be doubted that, if there were a probability of these declarations being carried into effect, it was not only the right, but the duty, of neighbouring governments to arm in their own defence; and, if there were no other method of averting the threatened aggression, encounter the partial evil to the community, war, great as that evil is, rather than submit to that total ruin of the community which must result from the forcible propagation of anarchy, Such extreme cases are of easy solution, and need no general rules for guidance; it is clear to every one that, in the words of Lord Grey," there are certain principles of interference connected with the rights of self-defence, which justify and render interference necessary." (2) But, when general rules have been laid down, they are usually of (2) Speech, 9th August, 1831.

(1) Alison, Hist. French Rev. I. 433, 434.

such an indefinite character that they do not lead one step nearer to the truth, or even to uniformity of action; as different ministers may exactly coincide in recognising the same general principles, and yet pursue completely different policy as the deduction from those principles. For instance, the best limitation I have seen of the right of intervention, is that given by Lord Castlereagh in his note on the affairs of Spain, communicated to the courts of Austria, France, Prussia and Russia, in May, 1820: he says, it consists in a state of things in a foreign country, which threatens other States with "that direct and immediate danger, which has always been regarded, at least in our own country; as constituting the only case which justifies foreign intervention." (1) The Congress of Verona needed no greater scope than was given by this definition; (2) but how different was the practical interpretation of this general principle, as given by this country, and by the monarchs at Verona. In the same manner, the cabinet of Lord Grey expressly proclaimed the principle of non-intervention; but on comparing the above quotations from Lord Grey and Lord Castlereagh, it will be seen that Lord Aberdeen was correct in saying, that "the present definition of the right of intervention agreed, even in words, with that laid down by Lord Castlereagh." (3) But how different would have been the interpretation of this definition afforded by the policy of the two ministers!

(1) De Martens, Rec. Supp. X. I. 176.

(2) See the notes of Bernstorff, Nesselrode, and Metternich,

from Verona. De Martens, id. 178-195.

(3) Vide debate, 13 March, 1832, on the French landing at Ancona.

[* See for the general discussion of the right of interference in its connexion with the independence of States, ante, Book III. chap. 1. p. 96.]