페이지 이미지

rightly, a neutral has nothing at all to do with the justice or injustice of the war, it is not for him to sit as judge between his friends who are at war with each other, and to give or deny more or less to the one or to the other as he thinks that their cause is more or less just or unjust. If I am a neutral, I cannot be useful to one that I may hurt the other, alteri non possum prodesse, ut alteri noceam.

But, will you say, may not I send to each of them whatever I may think proper? It is what friendship requires. If one power makes use of what I shall send him for the destruction of the other, what is that to me? But you must not adopt such an opinion: you must rather believe, that the enemies of our friends are to be considered in two points of view; either as our friends; or as the enemies of our friends. If we consider them only as our friends, then it is proper to assist them with advice, soldiers, arms, and all that they may want to carry on the war. But inasmuch as they are the enemies of our friends, it is not lawful for us to do so, because we thus would prefer, in causa belli, one of them to the other; and this the equality of friendship, which is first to be attended to, forbids. It is more important to preserve friendship with both, than by favoring one of them in causa belli, thus tacitly to renounce the friendship of the other.

And indeed, what I have just now said is not only conformable to reason, but to the usage admitted by almost all nations. For although it be lawful for us to carry on trade with the enemies of our friends, usage has so ordered it, as I shall shew more at large in the next chapter, that we should not assist either of them with those things by which the war against our friends may be carried on. It is therefore unlawful to carry to either party those things which are necessary in war, such as cannon, arms, and what is most essentially useful, soldiers; nay, soldiers are positively excepted by the treaties of various nations, and sometimes also materials for building ships, which might be used against our friends, have been excepted. Provisions likewise are often excepted, when the enemies are besieged by our friends, or are otherwise pressed by famine.* The law has very properly forbidden our supplying the enemy with any of those things; for it would be, as it were, making war against our friends. Therefore if we consider the belligerents merely as our friends, we may lawfully carry on trade with them, and carry to them any kind of merchandize, but if we consider them as the enemies of our friends, those merchandizes must be excepted, by means of which they might injure those friends; and this reason is stronger than the former, for in whatever manner we may assist one against the other, we do interfere in the war, which is not consistent with the duties of neutrality. From these reasons may be seen which had the most justice on its side, the edict of the Spaniards of the 30th of March 1639, or that of the states-general of the 3d of March 1640, of both of which I have spoken above.

Thus I have shortly laid down what has appeared to me to be the duty of those powers which are not bound by any alliance, but are in a state of perfect neutrality.f These I have

* It was probably on the principle which this vague word otherwise seems to indicate, that the British government issued their provision order against France, or rather against neutrals, on the 8th of June, and signed their convention with Russia, on the 25th of March 1793. If such is the strict law of nations, we must again repeat what we have said in a former note, that it is very nearly allied to barbarism. T.

t There are two kinds of neutrality, which some writers distinguish by the words perfect and imperfect, and others by absolute and qualified. Absolute neutrality is when the neutral is bound to neither of the belligerents by a treaty, the execution of which may affect the other in case of war, otherwise, his neutrality is no longer absolute, but qualified. Thus if a neutral is bound by treaty to admit the prizes of one party into his ports and not those of the other. At the beginning of Ihe war of 1793 the United States were neutrals between France and Great Britain, and so our government declared them to be by that proclamation which at the time excited so much sensation; our neutrality, however, was not absolute; it was qualified by the trea, ties made with France in 1778, which, independent of thejnutual guaranties and eventual alliance, contained several articles that applied only to a time of war. Between a qualified neutrality and an alliance there are many shades, and it is often difficult to draw the line which separates the one from the other. Our author, however, seems here to confound them together, and to consider every qualified neutrality as an alliance, T.

simply called neutrals, in order to distinguish them from allies and confederates. If the doctrine which I have contended for be correct, I cannot agree to the principle which I have seen advanced by many writers upon public law, to wit, that I may and ought to support and assist that one of my friends whose cause appears to me the best and the most just, not only by supplying him with military stores, but by going openly to war for him, if the case require it. This is not correct, for it is never right to interfere with the business of others. When neither of my friends has entered into any engagement with me, why shall princes, who are independent, and masters of their own actions, stand or fall by my judgment? It does not belong to me to avenge the injuries of every sovereign; it is sufficient if I avenge my own, and those of my allies. If, however, the injury done to another is such, that I may fear for myself, and there be no other hope left, but of being the last devoured, it may perhaps be admitted, that I ought to assist my oppressed friend; for it cannot be otherwise than impious to make war upon a friend, while he continues to be called such, and unless your friendship with him has been first dissolved.

As to allies and confederates, the thing is quite different. If two sovereigns with whom I am allied, are at war with other nations, I shall administer to both the succours which I am bound to give by treaty; but if they are at war with each other, shall I assist both, or only one of them, and which of them in preference? On this question the interpreters of the law are at variance with each other, not less so than nations themselves. Gentilis, De Jure Belli, 1. 3. c. 18. relates various opinions, and adds his own; Grotius, De Jure Bell, ac P. I. 2. c. 15. § 13., and after him Zouch, De Jure Fee. part 2. § 4. Q. 28., lay down various distinctions. Certainly auxiliary troops shall not be sent to each ally, even though they be due by treaty; for it would be most absurd to send my soldiers to both, that they may fight against each other. Those who hire out their soldiers are often in that predicament, but this does not belong to the present disquisition. As to myself, I think that whether my allies are at war with a foreign nation, or with each other, the only thing to be distinguished, is which

of the two has the most just cause of going to war. If they are both engaged in a just war with foreigners, I shall render to both that aid which I am bound by treaty to give: if only one of them, I shall deny it to the other. If two of my allies are at war with each other, I shall perform the obligation of my treaty with respect to him who has the best cause, of which I shall be myself the judge, as you will hear by and by. And thus we may easily do without the opinions and distinctions of others.

But what if I have promised succours to my ally and confederate, and he is at war with my friend? I think that promises are to be performed, and may be performed, because allies constitute, as it were, one society to be defended by mutual assistance. But here I must distinguish, whether my ally has received an injury, or has inflicted one; if he has received it, I shall perform my promise: if on the contrary he is the aggressor, I shall not perform it, because I am not bound to assist my ally in an unjust cause. But whether the cause be just or unjust, is to be determined by the judgment of the party bound.*

I wish indeed, that what I have said of the justice and injustice of a cause, was clearly and roundly expressed in treaties between nations; but those which I have seen simply express, that the one ally shall furnish to the other, when attacked, so many naval or land forces, and no more is said. But when the treaties say ,when attacked, there can be no other interpretation, but that succours are to be given to that ally, who is unjustly made war upon; to him who is attacked by, not to him who attacks the enemy. However, I do not find that expression, when attacked, sufficiently clear. For what if he who is attacked should have done an injury to the other, and thus have afforded him a cause of

• Our author seems here to be at variance with himself. See the preceding page and page 66, where he says that "a neutral has nothing at all to do with the justice or injustice of the war," belli jiutitia Nihil quicQjjam pertinet ad communem amicum. Much less does it concern an ally, or one who is bound by the solemn engagements of a treaty. See on this subject the able reasoning of Lord Havikesbury, in his Discount: on the conduct of the government of Great Britain in respect to neutral nation*. Land. edit. 1794, p.

68. r.

war? shall I send succours to that unjust ally? No, I shall not. It should be said then, that to him who is unjustly attacked, succours should be sent, as likewise to him. who has not afforded a cause of hostility, and whose fault or injury has not begun the war. Although, however, it be not openly expressed, that exception is always tacitly understood in treaties, which Grotius has proved, De Jure B. ac P. 1. 2. c. 15. § 13. n. 1., and I do not know any who differ from him.*

He who has promised succours, and he alone, as I have just now said, judges also of the justice of the cause, and whether the easus foederis, as is commonly said, has taken place or not. For the contracting parties are not in the habit of submitting that to the decision of arbitrators; which indeed would be very right, as treaties might not then be made sport of, as they now are. Otherwise, who is there, who will not interpret treaties as he may think will suit best his own interest? who will not evade them by a false interpretation?f The ancient Greeks and Romans, even in public matters, often left the justice or injustice of their cause to be determined by others, as is proved by many examples quoted by Grotius, 1. 2. c. 25. § 4.; and it was right to do so. But this part of the law of nations is now disused, and hence hardly any thing now-a-days remains of treaties but an empty name.

This is only applicable to treaties made before the breaking out of the war, by which supplies have been promised; for' in my opinion, after the beginning of the war, succours cannot be properly promised or sent to either friend, and he who will promise or send them to oae, will violate his neutrality with the other.

As to those states which are tributary to us or under our protection, they constitute a kind of intermediate description ©f states; for, from the very nature of protection, they are not considered as enemies, nor also as subjects, as they belong to another prince. They may therefore assist their sovereign, though he is our enemy, but not with arms and men, wherewith

• See, however, the notes in the preceding page and page 75. T. f Does not this militate against our author's doctrine in the preceding paragraph? See notes, p> 71. 75. T.

« 이전계속 »