Page images

friendly power the matter in dispute, and to agree to the decision of the umpire. Unless the injury is one affecting the national sovereignty and independence, war ought not to be resorted to, as it could not be called a war of self-defence ; for if my neighbor throw a small apple at me and I throw a large stone back at him, it would not be an act of self-defence. When a nation treats another as Bri. tain did the United States before the war of 1812, searching our ships on the high seas by force, and kidnapping seamen from on board, many of them being native Americans, and many more naturalized citizens, compelling our ships trading with France and her allies, to pay tribute to Britain and persisting that she had the right because she had the power to do these acts of atrocity, when a nation thus assaults a peaceful neutral, presenting, as President Madison well said, the singular spectacle of war on the one side and peace on the other, selfdefence becomes an imperative duty. No submission of such questions can properly be made. In carrying on such defensive war no more injury must be done than full and complete defence requires. For example, we have said that no nation can acquire title by conquest, but for the purpose of self-defence and obtaining the reparation of past wrongs and the prevention of future ones ; hence a nation may conquer any part or portion of

any other state in a defensive war, provided it is held as a pledge for payment of damages and released upon full satisfaction and proper security given against future injury. ' Upon this principle, during the last war, the conquest of Canada would have been justifiable, but at the close of the war we should upon sound ethical principles have been obliged to offer to restore the conquered colony to Britain upon her renouncing her unjust preten. sions by treaty, paying all damages done to the persons and property of Americans and our expenses of the war. If Britain refused this just reparation the conquered colony might have been justly retained in pledge for a reasonable time; and if Britain still refused, the colonists ought to have been offered their freedom from the mother couritry, the United States confiscating the crown lands and public property so far as might be necessary to pay the above damages and expenses of the war. If the colonists declined freedom, they might have been governed as free territories of the United States. This is the extent of the right of territorial conquest.



Our rule of self-defence disallows the confisca. tion of debts due to enemies before the war. The 9th Article of our convention or treaty with France of 1800 so provides, and such an unjust proceeding is not necessary to defence. It also reasserts the liberal principles of the treaty of Utretcht. The 4th Article of our treaty of 1783 with Britain provided properly that neither party should impede the collection of bona fida debts before contracted. The 10th Article of the treaty between Great Britain and the United States of November 1794, commonly called Jay's treaty, declared all debts, shares or money in public funds, or in public or private banks, should never in the event of war be confiscated, “it being,” says the Article, “unjust and impolitic” that such property should be affected by war. By the 28th Article of the treaty the 10th is declared to be a permanent rule. It shows the sense of the contracting parties that the old rule of pirating on private property is condemned by the enlightened spirit of the age. The same principle is equally applicable to all private property in all situations at sea and on land. Upon the same principle there is no belligerent right of employing savages or the enemies' slaves or privateers in war, as such acts are

contrary to humanity and not necessary to self-defence.

[merged small][merged small][ocr errors]

Our rule also sets aside the right of blockade, except so far as to preclude the entrance and de.. parture of enemies ships. Neutrals having no, arms, ammunition or munitions of war or enemies. soldiers on board, may rightfully enter and de-. part, for an interference with their peaceful pursuits cannot be said to be a necessary act of selfdefence. Beside the United States, or any neutral nation has a right freely to trade with every other nation; and a war between any two of them does not affect the rights of the residue, except that the duty of strict neutrality arises, and that can be only violated by taking part with either belligerent. To, enter a blockaded port and sell a cargo of flour is not taking part in the war, nor is starving the people of an enemies' sea-port a necessary act of selfdefence. This doctrine is agreed to by the 12th, 13th and 23d Articles of the treaty of 1785, between the United States and Prussia. We would not confine the self-defence of a nation to its own soil or the high seas, but we cannot perceive any right to shut up an enemy's ports from peaceful, lawful neutral trade on the plea of self-defence. The right of the neutral to trade, except in contra

band articles as above stated, with the belligerents is a perfect natural right, and we know of no moral right to starve to death or distress any portion of the human family. The treaty with Prussia fully sustains this view of the subject.



It follows that wars of self-defence must be waged against the army and navy of the enemy, against his fortresses, his arsenals, ship-yards for marine arming and military posts, against armed men, and not against private citizens, their property on hand, or their ships and cargoes at sea. This is the doctrine of the Emperor Napoleon's celebrated Berlin decree. It is now admitted by the code of public law that this is the true rule on land. The Supreme Court of the United States, in 1833, in adjudging the effect of the Spanish treaty çeding Florida to the United States, in the case of the United States vs. Percheman, (7 Peters, 51,) decided that the property of private persons cannot be affected or disturbed rightfully by any governmental act, either by conquest or cession. Our first treaty with Prussia establishes the immunity of private property by sea and land. It is clear that in the eye of reason no distinction exists between a ware-house of an enemy on shore and his

« PreviousContinue »