페이지 이미지
PDF
ePub

ff. de Capt. & Postlim. Fevers., lays down the contrary position. And such is the practice of all nations, unless there be a special convention to the contrary, which is sometimes the case. There are a few examples of similar compacts. In the fourth article of the treaty of Utrecht with Muyden and Weesp,* of the 1st of July 1463, it was agreed that the peace should last fourteen days, after we the said city and cities shall have written to each other, within which fourteen days it shall be lawful for our respective subjects to withdraw their goods and effects from the territory of their enemies. In the sixteenth article of the treaty of peace between the king of Portugal and the States-general, of the 6th August 1661, it is stipulated, that if differences shall arise between the said king and states, it is so to be declared, and within two years from that declaration it will be unlawful to do an injury to the property of the subjects of either party. After it had been agreed in the year 1662 between France and the states-general, that in case of a war taking place the subjects of either party should be allowed six months to withdraw their property from the territory of the other, the king of France having declared war against the Dutch in the year 1672 issued a special edict declaring that the convention of 1662 should be observed. The same term of six months was granted for the same purpose by the same powers to each other by the fifteenth article of the peace of Nimeguen, of the 10th of August 1678, nine months by the thirty-ninth article of the marine treaty of the 10th of August 1678, nine months again by the fourteenth article of the treaty of peace of the 20th of September 1697, and again nine months by the thirty-sixth article of the treaty of peace of the 11th of April 1713. And in the thirty-second article of the treaty of peace between England and the.states-general, of the 31st of July 1667, it was stipulated, that if war should arise between the parties, the effects of their respective subjects foand in the

* Muyden and Weesp, or Wesop, are two towns of South Holland: the former is situate at the mouth of the river Vecht (a branch of the Shine) and the latter a few miles above it on the same river. T.

territories of each other should not be condemned, but six months should be allowed to take them away. If these examples should not be sufficient, I could adduce several others mentioned by Zentgravius, de Orig. Verit. & Oblig. Jur. Gent. art. 7. § 9. Where, however, there do not exist similar conventions for suspending the state of war, whatever others may say, hostilities may commence immediately. Grotius, who * requires a declaration, does not require any interval between it and the beginning of hostilities. See 1. 3. De Jure B. &? P. c. 3. § 13. Zouch and Zentgravius are of the same opinion. Zouch, de Jur. int. gent, part 1. §6.* and Zent. d. loc. The king of Spain, therefore, might in the year 1598 have declared war and immediately afterwards taken the Dutch ships, as there was no convention between the two powers to the contrary, nor indeed could there be any between that sovereign and a people whom he considered as his subjects.

Here then is a remarkable instance of a war carried on for a great length of time without .ever having been declared. Indeed, I do not know how the Belgians could have required a declaration of war from the Spaniards, when they themselves never issued any, either at the commencement of hostilities, or when they were resumed after the expiration of truces. Nay, even admitting that such a declaration was indispensably required by the law of nations, the Spaniards might perhaps have objected that it was only necessary when war took place between independent princes, but that it was never used in a civil war, in which case it was perfectly lawful for a sovereign to take the property of his rebel subjects. But I do not urge this argument. It is sufficient for my purpose if I make it appear that the edict of the 4th of March 1600 was not predicated on the laws of war, but on the interest of the Dutch merchants. It was the same interest which influenced the Hollanders in the year 1639, and set them improperly at variance with the states-general, in another case which was no less dependent on the laws of war. For the governor of the

• Our author here quotes Zouch, § 3. Q. 10. without referring to the part.' It is evidently a misquotation. The true reference (which we have restored) is to part 1. § 6. T.

Cafiary Islands having been taken by treachery and brought into this country, and the states-general being desirous of detaining him as a prisoner, the Hollanders opposed it; but, says Aitzema,* merely on the ground of its being detrimental to their trade. For my part I think that they might well have founded their opposition on the merits of the case itself: as this was a much more shameful act than the condemnation of the Dutch vessels by Philip II. in 1598; for although an enemy's property may be taken and hostilities may be committed immediately upon a declaration of war, if there are no treaties to the contrary, yet it is in no case lawful to betray a friend. The Dutch had hitherto been admitted to trade freely with the Canary Islands, and there was on both sides a free commercial intercourse. A Dutch captain, who had been thus admitted to trade, persuaded the governor to go on board of his vessel, under pretence of carrying him from one island to

* Lib. 19. As this writer is frequently quoted In the course of this work, we think it proper to give softie account of, his writings to the American reader. Leo van Aitiema is the author of an excellent Chronicle of the. events which took place during the middle part of the seventeenth century, from 1621 to 1668. This work is published in six thick folio volumes, (with an additional volume containing political tracts,) and contains an immense collection of state papers, during the period to which it refers, which are connected together by the author's narrative. It is divided into books, each book containing a recital of the^public events and a copy of the public documents of one year. It has been ably continued on the same plan by L. Sylvius, in four folio volumes, down to the peace of Rysiuici, in 1697. This book, as well as its continuation, is entitled Saten man Staet en Oorlogh, (Of matters of State and War). Unfortunately it is written in the Low Dutch language, which is understood but by few among us., A translation of it into English would be a gTeat acquisition to literature, and prove an invaluable mine of historical knowledge. From the manner in which the public documents that it contains are connected and introduced by short historical narratives, it is superior to any collection of state papers that has ever appeared. It combines the advantages of such a collection with those of a chronicle of the times, which, we believe, are not to be found together in any other work extant. There are two editions of Jitzema, one in folio, the other in quarto. The latter is that from which our author has taken his quotations, to the paging of which he refers. Being possessed only of the folio edition, we have thought it best to refer merely to the tool in which each particular passage is to be found. T.

another, instead of which he carried him to Rotterdam in order to make him a prisoner. This appears to me to be precisely the same as going to an enemy under the protection of a flag of truce, with an intention however to seize upon the first favourable opportunity to take away his life.

But let us pass on to other wars commenced and carried on without any declaration. It is well known that when Gustavus Adolphus invaded Germany, the emperor Ferdinand II. complained that he had done it without a previous declaration of war, upon which Gustavus replied that the emperor himself had before invaded Prussia without any such declaration. It is thus that princes, though bound by no positive law, enforce upon each other the law of reciprocity. The same thing happened in the year 1657} for the French, in the midst of peace, having detained the goods of Dutch subjects which they had in their own country, the Dutch detained in like manner the goods of French subjects. See the edict of the states of Holland of the 26th April, and the decree of the states-general of the 6th of May of that year. Indeed the states-general lay it down in their said decree that such a detention among friends is unlawful, unless for a just cause, and unless there has been a previous demand and denial of justice. But no prince will detain the property of foreigners, unless for a cause which he himself thinks just. Certainly I would admit of a demand, because a cause of complaint cannot otherwise be known; but since the common use of resident ambassadors, which now obtains, there can be but few cases of injury of which a complaint is not made; for ambassadors are in the habit of making frequent representations, if the smallest thing happens by which their sovereign may be offended. But let us proceed.

We read of the Portuguese, that in the year 1657 they seized the ships of the Dutch before any war declared or hostilities commenced. And in the war which took place between the king of England and the states-general, which ended in the peace of 1667, the states-general, in the letter which they wrote to the king of England on the 16th of September 1666, complained that a great deal of property was taken from them and their subjects; unlawfully, said they, because war had not been declared. But of this the reader will judge from the reasonings which I here adduce. Louis XIV. also, in the year 1667, did not declare war against the Spaniards, and yet, as it were, without breaking the peace, he ordered the king of Spain to be expelled from dominions that he was possessed of, being of opinion that there was no need of a declaration to take what belonged to him. Now, if a declaration is necessary in any case, who, I ask, will put up With such a pretext? For to make war is nothing else than to take forcibly from an unwilling prince or people what we think to be justly due to us. There is a long complaint oh this subject in the edict of the states-general against France, of the 9th of March 1689,* because the same king of France had, in the year 1688, without any declaration of war, detained the Dutch subjects and their ships and merchandize, and afterwards, immediately on the declaration of war being published at Paris, he took up arms, and seized on the goods of Dutch subjects.

The first part of this complaint was indeed just; for that detention was a violation of the fifteenth article of the peace of Nimeguen and of the thirty-ninth article of the Marine treaty of the 10th of August 1678, the period stipulated by those several instruments, as above mentioned, for carryingoff the effects of the respective parties, not being.expired, so that the state of war was in this respect suspended. It-was therefore an act of injustice to capture such goods as might have been carried off within the limited time. As to other goods, there was no treaty concerning them, and therefore I doubt whether the second part of the complaint was equally well founded. But however this may be, the instances which I have adduced are sufficient' to prove that there is no reason why we should think so favourably of European manners, as to refer to them for a convincing proof of the necessity of declaring war.

• Sylv. contin. of Aitzema, b. 25.

te

« 이전계속 »