activity which is required of them in all great maritime ports, and the approach which consuls make to the efficacy and dignity of diplomatic characters, it was a wise provision in the Constitution of the United States which gave to the Supreme Court original jurisdiction in all cases affecting consuls, as well as ambassadors and other public ministers; and the federal jurisdiction is understood to be exclusive of the state courts. (f)

(f) Commonweath v. Kosloff, 5 Serg. & Rawle, 545; Hall v. Young, 3 Pick. 80; Davis v. Packard, 7 Peters U. S. 276; Sartori v. Hamilton, 1 Green (N. J.) 107. See, also, infra, pp. 298, 304.1

1 The jurisdiction of the courts of the United States is exclusive, if a foreign consul be a defendant, even though he is sued jointly with other persons. Naylor v. Hoffman, 22 How. Pr. R. 510.

LECTURE III.

OF THE DECLARATION, AND OTHER EARLY MEASURES OF A STATE
OF WAR.

IN the last Lecture we considered the principal rights and duties of nations in a state of peace; and if those duties were generally and duly fulfilled, a new order of things would arise, and shed a brighter light over the history of human affairs. Peace is said to be the natural state of man, and war is undertaken for the sake of peace, which is its only lawful end and purpose. (g) War, to use the language of Lord Bacon, (h) is one of the highest trials of right; for, as princes and states acknowledge no superior upon earth, they put themselves upon the justice of God by an appeal to arms. The history of mankind is an almost uninterrupted narration of a state of war, and gives color to the extravagant theory of Hobbes, (i) who maintains, that the natural state of man is a state of war of all against all; and it adds plausibility to the conclusions of those other writers, who, having known and studied the Indian character, insist that continual war is the natural instinct and appetite of man in a savage state. It is doubtless true, that a sincere disposition for peace, and a just appreciation of its blessings, are the natural and necessary result of science and civilization.

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*The right of self-defence is part of the law of our nature, and it is the indispensable duty of civil society Self-defence. to protect its members in the enjoyment of their rights, both of person and property. This is the fundamental principle of the social compact. An injury either done or threatened to the perfect rights of the nation, or of any of its members, and susceptible of no 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

(g) Cic. de Off. 1, 11 and 23; Grotius, b. 1, c. 1; Burlamaqui, part 4, c. 1, sec. 4; Vattel, b. 4, c. 1.

(h) Bacon's Works, vol. iii. p. 40.

(i) Leviathan, part 1, c. 13.

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. (6) 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.

*If the question of right between two powers be in any 49 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 judg ment, 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.

If one nation be bound by treaty to afford assistance, in case of war between its ally and a third power, the assistance Assistance is to be given whenever the casus fœderis occurs; but by treaty.

(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.

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

*50

war.

*The doctrine that one nation is not bound to assist another, 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 of the contract does not call for the assistance, unless the ally be

(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.

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 1778, was declared, by the second article, to be a defensive 51 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)

Declaration

In the ancient republics of Greece and Italy, the right of declaring war resided with the people, who retained, in their collective capacity, the exercise of a large portion of the sover- of war. eign power. Among the ancient Germans it belonged also to the popular assemblies, (c) and the power was afterwards continued

(e) 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 1793, 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.

ance.

(b) Several instances are mentioned in Wheaton's Elements of International Law, 3d edit. 325–334, of the occurrence of the casus fœderis in the case of a defensive alliA 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 dis tinction between Jus inter Gentes and Jus Gentium inter Civitates. International law 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.

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