nor have the intelligence and probity of men been such that good arbitrators could always be found. The question, however, relates to duty, and does not affect the justice of a war which a nation should undertake on grounds which approved themselves to its own unaided judgment. (Comp. § 19.)

A state bound by treaty to assist another in the event of war, must of course judge whether the casus fœ- Ought an ally tc deris exists, and is also bound to pass judgment judge?

on the nature of the war, since no treaty can sanction injustice.

$112.

of

The rightfulness of war, that is of some wars, will be clear when we consider that to states, by the divine Rightfulness constitution of society, belong the obligations of war in general. protecting themselves and their people, as well as the right of redress, and even, perhaps, that of punishment. (§ 20.) To resist injury, to obtain justice, to give wholesome lessons to wrong-doers for the future, are prerogatives deputed by the Divine King of the world to organized society, which, when exercised aright, cultivate the moral faculty, and raise the tone of judging through mankind. War is a dreadful thing when evil suffered or inflicted is considered; and yet war has often been the restorer of national virtue, which had nearly perished under the influence of selfish, luxurious peace.

war be

under.

A war may be waged to defend any right which a state is bound to protect, or to redress wrong, or to pre- For what may vent apprehended injury. And (1.) a state may taken? go to war to defend its sovereignty and independence,—that is, its political life, or its territory. This reason for war is analogous to the individual's right of self-preservation, and of defending his house when attacked.

(2.) The state being bound to protect the individual inhabitant in all his rights, is his only defender against foreign violence, and may redress his wrongs even by war. But here it is reasonable to consider the extent of the injury, and the greatness of the evil which the remedy may involve. A state may

forbear to redress its own public wrongs, much more the smaller ones of individuals.

(3.) A state may engage in war to obtain satisfaction for violations of its honor, as for insults to its flag or its ambassadors, or its good name. We have seen (§ 18), that a state has a right of reputation, that this right is extremely important, and that infractions of it cannot fail to arouse a deep sense of wrong in a high-minded people. Redress, therefore, is here as just and natural, as suits for libel or slander between individuals. It is plain, however, that every small want of comity or petty insult does not warrant hostile measures, though it may call for remonstrance.

(4.) Violations of those rights which nations concede to one another by treaty may call for the redress of war. A contract is broken, and there is no court before which the party doing the injury can be summoned.

(5.) The prevention of intended injury is a ground of war This indeed is a case of self-defence, only the injury must not be remote or constructive, but fairly inferrible from the preparations and intentions of the other party. The injury, again, which is to be prevented may not be aimed directly against a particular state, but may affect the equilibrium of a system of states. Thus the ambition of a leading state, it is now held, may, by disturbing the balance of power in Europe, provoke the interference of others upon the same continent. (Comp. § 43.)

(6.) In some rare cases a great and flagrant wrong committed by another nation, against religion for instance, or liberty, may justify hostile interference on the part of those who are not immediately affected. (§ 50.) And this, not only because the wrong, if allowed, may threaten all states, but also because the better feelings of nations impel them to help the injured.

§ 113.

Wars may be waged against foreign states in the same poliKinds of war, of tical system, or nations out of the pale of Christian civilization, against savages, against pirates, or by

fensive and defensive war.

the parts of a state against each other. Of the most of these, after the first, international law has usually but a word to say. Wars, again, have been divided into defensive and offensive. This distinction is of no very great importance, since, as we have seen, the two may differ less in essence than in form, and, as it respects form, the one runs into the other. A wronged nation, or one fearing sudden wrong, may be the first to attack, and that is perhaps its best defence. Moreover, offensive wars, however apt to be unjust, have usually some pretext of justice to urge in their favor, which nations, except in extreme cases, must respect, unless every nation is to become a judge and a party.

& 114.

Nations have sometimes resorted to measures for obtaining redress, which have a hostile character, and yet Measures for refall short of actual war. Embargo, retorsion, and of war. reprisal, are of this description.

dress falling short

Embargo.

1. An embargo (from the Spanish and Portuguese, embargar, to hinder or detain, the root of which is the same as that of bar, barricade), is, in its special sense, a detention of vessels in a port, whether they be national or foreign, whether for the purpose of employing them and their crews in a naval expedition, as was formerly practised, or for political purposes, or by way of reprisals. A civil embargo may be laid for the purpose of national welfare or safety, as for the protection of commercial vessels against the rules of belligerent powers which would expose them to capture. Such was the measure adopted by the United States in December, 1807, which detained in port all vessels except those which had a public commission, and those that were already laden or should sail in ballast. The right to adopt such a measure of temporary non-intercourse, is undoubted. Great Britain, although injured by the act, acknowledged that it afforded to foreign nations no ground of complaint. And yet, in the half century since that event, uninterrupted intercourse has come to be regarded almost as an absolute right, and the injuries in

4

flicted in such a way on friendly states would cause them to protest with energy or to retaliate. (Note 6.)

A hostile embargo is a kind of reprisals by one nation upon vessels within its ports belonging to another na Hostile embargo, tion with which a difference exists, for the pu ̃pose of forcing it to do justice. If this measure should be i lowed by war, the vessels are regarded as captured, if by pea, they are restored. "This species of reprisal," says Kent, 61,) “is laid down in the books as a lawful measure accord to the usage of nations, but it is often reprobated, and can: well be distinguished from the practice of seizing prope found in the territory upon the declaration of war." Altho · such a measure might bring an adversary to terms, and vent war, yet its resemblance to robbery, occurring, as it d in the midst of peace, and its contrariety to the rules accord to which the private property even of enemies is treated, ou to make it disgraceful, and drive it into disuse.

Retorsion.

2. Retorsion (from retorquere, French, retordre, retort, retaliation, is to apply the lex talionis to anot nation,-treating it or its subjects in similar cumstances according to the rule which it has set. Thus, a nation has failed in comity or politeness, if it has embarra. 1 intercourse by new taxes on commerce or the like, the same or an analogous course may be taken by the aggrieved power to bring it back to propriety and duty. The sphere of retorsion ought to be confined within the imperfect rights or moral claims of an opposite party. Rights ought not to be violate l because another nation has violated them.

3. Reprisals (from reprendere, Latin, repressaliæ, in medi æval Latin, reprisailles, French), consist properiv

Reprisals.

in recovering what is our own by force, then in seizing an equivalent, or, negatively, in detaining that which belongs to our adversary. Reprisals, says Vattel, "are used between nation and nation to do justice to themselves, when they cannot otherwise obtain it. If a nation has taken

sion of what belongs to another; if it refuses to pay a debt, to repair an injury, to make a just satisfaction, the other may

seize what belongs to it, and apply it to its own advantage, till it has obtained what is due for interest and damage, or keep it as a pledge until full satisfaction has been made. In the last case it is rather a stoppage or a seizure than reprisals; but they are frequently confounded in common language." (B. II. § 342.) Reprisals differ from retorsion in this, that the essence of the former consists in seizing the property of another nation by way of security, until it shall have listened to the just reclamations of the offended party, while retorsion includes all kinds of measures which do an injury to another, similar and equivalent to that which we have experienced from him.* Em.bargo, therefore, is a species of reprisals.

Reprisals may be undertaken on account of any injury, but are chiefly confined to cases of refusal or even obstinate delay of justice. Grotius adds that they are authorized, "si in re minime dubia plane contra jus judicatum sit." (III. 2, § 5, 1.) But this is an unsafe opinion, and to be acted upon only in an extreme case, for the sentence of a regular tribunal will always be supported by some plausible, if not valid reason: there should be the fullest proof of an intention to deny or to overturn justice.

Where the property of a state is seized by way of reprisals, the proceeding needs no defence; on the other hand, to take the goods of private persons as security for the reparation of public wrongs is indefensible except on the ground that a state and its subjects are so far one as to give it a claim on their property for public purposes, and that the injured state takes the place of the injurer, and exercises its power by the only means within its reach. As therefore, when a man's land is taken for a public road, he has a claim for compensation, so, when a man loses his property by the violent process of a foreign state against his own country, not he, but the whole society ought to make his loss good. Still reprisals are inhumane, and like seizure of private effects in land war, will, it is to be hoped, ere long entirely cease.

* Pinheiro-Ferreira in de Martens, Vol. II. § 255.