BOOK III. And, with respect to things, the case is the same as with respect to persons:-things belonging to the enemy continue_CHAP. V. such, wherever they are. (1) But we are not hence to con- 74. conclude, any more than in the case of persons (§ 71), that we tinue such everywhere possess a right to treat those things as things be- everywhere. longing to the enemy. found with Since it is not the place where a thing is, which determines the nature of that thing, but the character of the person to whom it belongs,-things belonging to neutral persons, which 75. Neuhappen to be in an enemy's country, or on board an enemy's tral things ships, are to be distinguished from those which belong to the enemy. But it is the owner's business to adduce evident proof that they are his property: for, in default of such proof, a thing is naturally presumed to belong to the nation in whose possession it is found. (148) an enemy. an enemy's country. The preceding section relates to movable property: but the rule is different with respect to immovable possessions, such as landed estates. Since all these do in some measure 2 76. Lands belong to the nation, are part of its domain, of its territory, possessed by and under its government (Book I. §§ 204, 235, Book ii. foreigners in § 114)-and since the owner is still a subject of the country as possessor of a landed estate,-property of this kind does not cease to be enemy's property (res hostiles), though possessed by a neutral foreigner. Nevertheless, war being now carried on with so much moderation and indulgence, protections are granted for houses and lands possessed by foreigners in an enemy's country. For the same reason, he who declares war does not confiscate the immovable property possessed in his country by his enemy's subjects. By permitting them to purchase and possess such property, he has in that respect admitted them into the number of his subjects. But the income may be sequestrated, in order to prevent its being remitted to the enemy's country. third party. Among the things belonging to the enemy, are likewise in- ? 77. Things corporeal things, all his rights, claims, and debts, excepting, due to the however, those kind of rights granted by a third party, and in enemy by a which the grantor is so far concerned, that it is not a matter of indifference to him, in what hands they are vested. Such, [323] for instance, are the rights of commerce. But as debts are not of this number, war gives us the same rights over any sums of money due by neutral nations to our enemy, as it can give over his other property.(149) {(1) See Johnson et al. v. Twenty-one Bales, &c. Van Ness, Prize Causes, p. 7.} (148) As to protection to neutrals' property and modern decisions, see 1 Chitty's Commercial Law, 385-440; Id. Index. tit. Neutrals; 1 Chitty's L. Nat. 34, 54, 110-113, 183; Id. Index, tit. Neutrala.-C. (149) This was the ancient law of nations, Att. Gen. v. Weedon, Parker Rep. 267, though certainly denied by Rolle, J. At all events, it is now altered; see authorities, ante, 284, n. (134;) 1 Chitty's Commercial Law, 423; 1 Chitty's L. Nat. 82 to 86.-C. {But see Fairfax v. Hunter, 5 Cranch, 19.} BOOK III. CHAP. V. When Alexander, by conquest, became absolute master of Thebes, he remitted to the Thessalians a hundred talents which they owed to the Thebans.* The sovereign has naturally the same right over what his subjects may owe to enemies, he may therefore confiscate debts of this nature, if the term of payment happen in the time of war; or at least he may prohibit his subjects from paying while the war continues. But, at present, a regard to the advantage and safety of commerce has induced all the sovereigns of Europe to act with less rigour in this point. (150) And as the custom has been generally received, he who should act contrary to it would violate the public faith; for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. The state does not so much as touch the sums which it owes to the enemy: money lent to the public is everywhere exempt from confiscation and seizure in case of war. CHAP. VI. to war. CHAP. VI. OF THE ENEMY'S ALLIES-OF WARLIKE ASSOCIATIONS—OF 278. Trea- WE have sufficiently spoken of treaties in general, and ties relative shall here touch on this subject only in its particular relations to war. Treaties relating to war are of several kinds, and vary in their objects and clauses, according to the will of those who make them. Besides applying to them all that we have said of treaties in general (Book II. Ch. XII. &c.), they may also be divided into treaties real and personal, equal and unequal, &c. But they have also their specific differences, viz. those which relate to their particular object, war. ? 79. Defen nces. Under this relation, alliances made for warlike purposes are sive and of divided in general into defensive and offensive alliances. In fensive alli- the former, the nation engages only to defend her ally in case he be attacked: in the latter, she unites with him for the purpose of making an attack,- of jointly waging war against another nation. Some alliances are both offensive and defensive; and there seldom is an offensive alliance which is not also a defensive one. But it is very usual for alliances to be 324] purely defensive: and these are in general the most natural and lawful. It would be a tedious and even a useless task to enumerate in detail all the varieties incident to such alliances. Grotius, de Jure Belli & Pacis, lib. iii. cap. viii. 4. (150) Sec supra, n. (149). BOOK III. CHAP. VI. tween war Some are made, without restriction, against all opponents: in others, certain states are excepted: others again are formed against such or such a nation expressly mentioned by name. But a difference of great importance to be observed, espe- 2 80. Difcially in defensive alliances, is that between an intimate and ference becomplete alliance, in which we agree to a union of interests,- like associaand another, in which we only promise a stated succour. The tions and alliance in which we agree to a union of interests is a warlike auxiliary association each of the parties acts with his whole force; all treaties. the allies become principals in the war; they have the same friends and the same enemies. But an alliance of this nature is more particularly termed a warlike association, when it is offensive. When a sovereign, without directly taking part in the war 2 81. Auximade by another sovereign, only sends him succours of troops liary troops. or ships, these are called auxiliaries. The auxiliary troops serve the prince to whom they are sent, according to their sovereign's orders. If they are purely and simply sent without restriction, they are to serve equally on the offensive and the defensive; and for the particulars of their operations, they are to obey the directions of the prince to whose assistance they come. Yet this prince has not the free and entire disposal of them, as of his own subjects: they are granted to him only for his own wars; and he has no right to transfer them, as auxiliaries, to a third power. Sometimes, this succour from a potentate who does not di- 2 82. Subsirectly take part in the war, consists in money: and then it is dies. called a subsidy. This term is now often taken in another sense, and signifies a sum of money annually paid by one sovereign to another, in return for a body of troops which the latter furnishes to the other to carry on his wars, or keeps in readiness for his service. The treaties for procuring such a resource are called subsidiary treaties. France and England have at present such treaties existing with several of the northern powers and princes in Germany, and continue them even in times of peace. assist an other, In order, now, to judge of the morality of these several trea- ? 83. When ties or alliances, of their legitimacy according to the law of a nation is nations, we must, in the first place, lay down this incontro- allowed to vertible principle, that It is lawful and commendable to succour and assist, by all possible means, a nation engaged in a just war; and it is even a duty incumbent on every nation, to give such assistance, when she can give it without injury to herself. But no assistance whatever is to be afforded to him who is engaged in an unjust war. There is nothing in this which is not demonstrated by what we have said of the common duties of nations towards each other. (Book II. Ch. I.) To support the cause of justice when we are able, is always commendable: but, in assisting the unjust, we partake of his crime, and become, like him, guilty of injustice. BOOK III. If, to the principle we have now laid down, you add the CHAP. VI. consideration of what a nation owes to her own safety, and 84. and to of the care which it is so natural and so fit that she should make alli- take to put herself in a condition to resist her enemies, you will the more readily perceive how clear a right a nation has to make warlike alliances, and especially defensive alliances, whose sole tendency is to maintain all parties in the quiet and secure possession of their property. ances for war. [ 325 ] ? 85. Alli But great circumspection is to be used in forming such alliances. Engagements by which a nation may be drawn into a war at a moment when she least expects it, ought not to be contracted without very important reasons, and a direct view to the welfare of the state. We here speak of alliances made in time of peace, and by way of precaution against future contingencies. If there be question of contracting an alliance with a naances made tion already engaged in a war, or on the point of engaging with a na- in one, two things are to be considered: 1. The justice of tion actually that nation's quarrel. 2. The welfare of the state. If the engaged in war. 286. Tacit clause in every warlike alli ance. war which a prince wages, or is preparing to wage, be unjust, it is not allowable to form an alliance with him; for injustice is not to be supported. If he is justifiable in taking up arms, it still remains to be considered whether the welfare of the state allows or requires us to embark in his quarrel for it is only with a view to the welfare of the state that the sovereign ought to use his authority: to that all his measures should tend, and especially those of the most important nature. What other consideration can authorize him to expose his people to the calamities of ? war As it is only for the support of a just war that we are allowed to give assistance or contract alliances,-every alliance, every warlike association, every auxiliary treaty, contracted by way of anticipation in time of peace, and with no view to any particular war, necessarily and of itself includes this tacit clause-that the treaty shall not be obligatory except in case of a just war. On any other footing, the alliance could not be validly contracted. (Book II. §§ 161, 168.) But care must be taken that treaties of alliance be not thereby reduced to empty and delusive formalities. The tacit restriction is to be understood only of a war which is evidently unjust; for otherwise a pretence for eluding treaties would never be wanting. Is there question of contracting an alliance with a power actually at war? It behooves you most religiously to weigh the justice of his cause: the judg ment depends solely on you, since you owe him no assistance any further than as his quarrel is just, and your own circumstances make it convenient for you to embark in it. But when once engaged, nothing less than the manifest injustice of his cause can excuse you from assisting him. In a doubt ful case, you are to presume that your ally has justice on his side; that being his concern. BOOK III. CHAP. VI. But if you entertain strong doubts, you may very fairly and commendably interpose to effect an accommodation. Thus you may bring the justice of the cause to the test of evidence, by discovering which of the contending parties re- [ 326 ] fuses to accede to equitable conditions. As every alliance implies the tacit clause above mentioned, g 87. To rehe who refuses to succour his ally in a war that is manifestly fuse sucunjust is not chargeable with a breach of alliance. cours for an unjust war When alliances have thus been contracted beforehand, the is no breach question is, to determine, in the course of events, those cases of alliance. in which our engagements come in force, and we are bound to act in consequence of the alliance. This is what is called & 88. What casus fœderis, or case of the alliance, and is to be discovered the casus fœderis is. in the concurrence of the circumstances for which the treaty has been made, whether those circumstances have been expressly specified in it, or tacitly supposed. Whatever has been promised in the treaty of alliance is due in the casus fæderis, and not otherwise. ? As the most solemn treaties cannot oblige any one to favour 89. It an unjust quarrel (§ 86): the casus fœderis never takes place never takes in a war that is manifestly unjust. place in an unjust war. defensive In a defensive alliance, the casus fœderis does not exist immediately on our ally being attacked. It is still our duty to ? 90. How examine whether he has not given his enemy just cause to it exists in a make war against him: for we cannot have engaged to un- war, dertake his defence with the view of enabling him to insult others, or to refuse them justice. If he is in the wrong, we must induce him to offer a reasonable satisfaction; and if his enemy will not be contented with it, then, and not till then, the obligation of defending him commences. But if the defensive alliance contains a guarantee of all 91. and in the territories at that time possessed by the ally, the casus a treaty of foederis immediately takes place whenever those territories guarantee. are invaded or threatened with an invasion. If they are attacked for a just cause, we must prevail on our ally to give satisfaction; but we may on good grounds oppose his being deprived of his possessions, as it is generally with a view to our own security that we undertake to guaranty them. On the whole, the rules of interpretation, which we have given in an express chapter,* are to be consulted, in order to determine, on particular occasions, the existence of the casus fœderis. If the state that has promised succours finds herself un- ¿ 92. The able to furnish them, her inability alone is sufficient to dis- succour is pense with the obligation; and if she cannot give her assistance without exposing herself to evident danger, this not due under an inability to Book II. chap. xvii. |