other redress, is a just cause of war. The injury may consist, not only in the direct violation of personal or political rights, but in wrongfully withholding what is due, or in the refusal of a reasonable reparation for injuries committed, or of adequate explanation or security in respect to manifest and impending danger. (a) Grotius condemns the doctrine that war may be undertaken to weaken the power of a neighbor, under the apprehension that its further increase may render him dangerous. This would be contrary to justice, unless we were morally certain, not only of a capacity, but of an actual intention to injure us. We ought rather to meet the anticipated danger by a diligent cultivation and prudent management of our own resources. We ought to conciliate the respect and good will of other nations, and secure their assistance, in case of need, by the benevolence and justice of our conduct. War is not to be resorted to without absolute necessity, nor unless peace would be more dangerous and more miserable than war itself. An injury to an individual member of a state is a just cause of war, if redress be refused; but a nation is not bound to go to war on so slight a foundation; for it may of itself grant indemnity to the injured party, and if this cannot be done, yet the good of the whole is to be preferred to the welfare of a part. (b) Every milder method of redress is to be tried, before the nation makes an appeal to arms; and this is the sage and moral precept of the writers on natural law.

*49

*If the question of right between two powers be in any degree dubious, they ought to forbear proceeding to extremities; and a nation would be condemned by the impartial voice of mankind, if it voluntarily went to war upon a claim of which it doubted the legality. But on political subjects, we cannot expect, and are not to look for the same rigorous demonstration as in the physical sciences. Policy is a science of calculations and combinations, arising out of times, places, and circumstances, and it cannot be reduced to absolute simplicity and certainty. We must act according to the dictates of a well-informed judgment, resting upon a diligent and careful examination of facts; and every pacific mode of redress is to be tried faithfully and perseveringly, before the nation resorts to arms.

1 Assistance to Allies in War.

If one nation be bound by

(a) Grotius, b. 2, c. 1 and 22; Rutherforth, b. 2, c. 9; Vattel, b. 3, c. 3, sec. 26. (b) Grotius, b. 2, c. 22-25; Rutherforth, b. 2, c. 9.

treaty to afford assistance, in case of war between its ally and a third power, the assistance is to be given whenever the casus fœderis occurs; but a question will sometimes arise, whether the government, which is to afford the aid, is to judge for itself of the justice of the war on the part of the ally, and to make the right to assistance depend upon its own judgment. Grotius is of opinion, (a) that treaties of that kind do not oblige us to participate in a war, which appears to be manifestly unjust on the part of the ally; and it is said to be a tacit condition annexed to every treaty made in time of peace, and stipulating to afford succors in time of war, that the stipulation is only to apply to a just war. To give assistance in an unjust war on the ground of the treaty, would be contracting an obligation to do injustice, and no such contract is valid. (b) But to set up a pretext of this kind to avoid a positive engagement is extremely hazardous, and it cannot be done, except in a very clear case, without exposing the nation to the imputation of a breach of public faith. In doubtful cases, the presumption ought rather to be in favor of our ally, and of the justice of the war.

*The doctrine that one nation is not bound to assist an- *50 other, under any circumstances, in a war clearly unjust, is similar to the principle in the feudal law, to be met with in the Book of Feuds, compiled from the usages of the Lombards, and forming part of the common law of Europe during the prevalence of the feudal system. A vassal refusing to assist his liege lord in a just war, forfeited his feud. If the justice of the war was even. doubtful, or not known affirmatively to be unjust, the vassal was bound to assist; but if the war appeared to him to be manifestly unjust, he was under no obligation to help his lord to carry it on offensively. (a)

A nation, which has agreed to render assistance to another, is not obliged to furnish it when the case is hopeless, or when giving the succors would expose the state itself to imminent danger. Such extreme cases are tacit exceptions to the obligation of the treaty; but the danger must not be slight, remote, nor contingent, for this would be to seek a frivolous case to violate a solemn engagement. (b) In the case of a defensive alliance, the condition

(a) B. 2, c. 25.

(b) Vattel, b. 2, c. 12, sec. 168; b. 3, c. 6, sec. 86, 87. (a) Feud lib. 2, tit. 28, sec. 1.

(b) Vattel, b. 3, c. 6, sec 92.

of the contract does not call for the assistance, unless the ally be engaged in a defensive war; for in a defensive alliance, the nation engages only to defend its ally, in case he be attacked, and even then we are to inquire whether he be not justly attacked. (c) The defensive alliance applies only to the case of a war first commenced, in point of fact, against the ally; and the power that first declares, or actually begins the war, makes what is deemed, in the conventional law of nations, an offensive war. (d) The

*

treaty of alliance between France and the United States, in *51 1778, was declared, by the second article, to be a defensive alliance, and that declaration gave a character to the whole instrument; and consequently, the guaranty, on the part of the United States, of the French possessions in America, could only apply to future defensive wars on the part of France. Upon that ground, the government of this country, in 1793, did not consider themselves bound to depart from their neutrality, and to take part with France in the war in which she was then engaged. (a) The war of 1793 was first actually declared and commenced by France, against all the allied powers of Europe, and the nature of the guaranty required us to look only to that fact. (b)

2. Declaration of War.-In the ancient republics of Greece and Italy, the right of declaring war resided with the people, who

(c) Vattel, b. 3, c. 6, sec. 79, 83, 90.

(d) A war may be defensive in its principles, though offensive in its operations; as where attack is the best mode to repel a menaced invasion, and the casus fœderis of a defensive alliance will apply. He who first renders the application of force necessary is the aggressor, though he may not be the one who first actually applies it. Vattel, b. 3, c. 6, sec. 91, 100. Edin. Review, No. 39, pp. 244, 245.

(a) See Pacificus, written in 1798, by Mr. Hamilton, then Secretary of the Treasury; and see the Instructions from the Secretary of State to the American ministers to France, July 15th, 1797.

(b) Several instances are mentioned in Wheaton's Elements of International Law, 3d ed. 325-334, of the occurrence of the casus fœderis in the case of a defensive alliance. A distinction is made, in the later writers on public law, between the law of nations and international law, originating, it is said, with Jeremy Bentham. Thus Mr. Wheaton calls one of his Works the History of the Law of Nations, and the other, Elements of International Law. Chancellor d'Aguesseau long ago noticed the distinction between Jus inter Gentes and Jus Gentium inter Civitates. International la seems to relate more particularly to rights and duties arising from social, commercial, and pacific intercourse between different nations, and may be subdivided into public and private international law.1

1 Ante, 1, note 1.

retained, in their collective capacity, the exercise of a large portion of the sovereign power. Among the ancient Germans it belonged also to the popular assemblies, (c) and the power was afterwards continued in the same channel, and actually resided in the Saxon Wittenagemote. (d) But in the monarchies of Europe, which arose upon the ruins of the feudal system, this important prerogative was generally assumed by the king, as appertaining to the duties of the executive department of government. Many publicists (e) consider the power as a part of the sovereign authority of the state, of which the legislative department is an essential branch. There are, however, several exceptions to the generality of this position; for in the limited monarchies of England, France, and Holland, the king alone declares war, and yet the power, to apply an observation of Vattel to the case, is but a slender prerogative of the crown, if the parliaments or legislative bodies of those kingdoms will act independently, since the king cannot raise the money requisite to carry on the war without their consent. The wild and *52 destructive wars of Charles XII. led the states of Sweden to reserve to themselves the right of declaring war; and in the form of government adopted in Sweden, in 1772, (a) the right to make war was continued in the same legislative body. This was the provision in those ephemeral constitutions which appeared in Poland and France the latter part of the last century; and as evidence of the force of public opinion on this subject, it may be observed, that in the constitution proposed by Bonaparte, on his reascension of the throne of France, in 1815, the right to levy men and money for war was to rest entirely upon a law to be proposed to the House of Representatives of the people, and assented to by them. In this country, the power of declaring war, as well as of raising the supplies, is wisely confided to the

(c) Tacit. de M. G. c. 11.

(d) Millar's View of the English Government, b. 1, c. 7. In the capitulation or great charter, signed by Christopher II., King of Denmark, on his election to the throne in 1819, by the diet or assembly of the nobles, it was, among other things, declared that he should not make war without the advice and consent of the prel ates and best men of the kingdom. Bishop Muller's Ancient History and Constitution of Denmark, reviewed in the Foreign Quarterly Review, No. 21.

(e) Puff. b. 8, c. 6, sec. 10; Vattel, b. 3, c. 1, sec. 4.

(a) Art. 48. But this free constitution of Sweden was overturned before the end of the year 1772, and a simple despotism established in its stead.

legislature of the Union; and the presumption is, that nothing short of a strong case deeply affecting our essential rights, and which cannot receive a pacific adjustment, after all reasonable efforts shall have been exhausted, will ever prevail upon Congress to declare war.

It has been usual to precede hostilities by a public declaration communicated to the enemy. It was the custom of the ancient Greeks and Romans to publish a declaration of the injuries they had received, and to send a herald to the enemy's borders to demand satisfaction, before they actually engaged in war; and invasions without notice were not looked upon as lawful. (b)

War was declared with religious preparation and solemnity. *53 According to Ulpian, (c) they alone were reputed ene

*

mies against whom the Roman people had publicly declared war. During the middle ages, a previous declaration of war was held to be requisite by the laws of honor, chivalry, and religion. Louis IX. refused to attack the Sultan of Egypt until he made a previous declaration to him by a herald at arms; and one of his successors sent a herald, with great formality, to the governor of the Low Countries, when he declared war against Spain, in 1635. (a) But, in modern times, the practice of a solemn declaration made to the enemy has fallen into disuse, and the nation contents itself with making a public declaration of war within its own territory, and to its own people. The jurists are, however, divided in opinion, in respect to the necessity or justice of some previous declaration to the enemy in the case of offensive war. Grotius (b) considers a previous demand of satisfaction, and a declaration, as requisite to a solemn and lawful war; and Puffendorf (c) holds acts of hostility, which have not been preceded by a formal declaration of war, to be no better than acts of piracy and robbery. Emerigon (d) is of the same opinion; and he considered the hostilities exercised by

(b) Potter's Antiquities of Greece, b. 3, c. 7; Livy, b. 1, c. 32; Cic. de Off. b. 1, c. 11; De Repub. lib 3.

(c) Dig. 49. 15. 24. Cicero says, that under the Roman kings it was instituted law, that the war was unjust and impious, unless declared and proclaimed by the heralds under religious sanction. De Repub. lib. 2, 17.

(a) Emerigon, Traité des Ass. i. 561.

(b) B. 1, c. 3, sec. 4.

(c) B 8, c. 6, sec. 9.

(d) Traité des Ass. i. 563.