repelled by force. But, if there is question of obtaining BOOK IV. reparation of the damage done, together with adequate satis- CHAP. IV. faction for the offence, we must apply to the sovereign of the delinquents: we must not pursue them into his dominions, or have recourse to arms, unless he has refused to do us justice. If we have reason to fear that the offenders will escape,-as, [ 449 ] for instance, if a band of unknown persons from a neighbouring country have made an irruption into our territory, we are authorized to pursue them with an armed force into their own country, until they be seized: and their sovereign cannot consider our conduct in any other light than that of just and lawful self-defence, provided we commit no hostilities against innocent persons. of rupture on account of allies. When the principal contracting party has included his al- 2 44. Causes lies in the treaty, their cause becomes in this respect inseparable from his; and they are entitled, equally with him, to enjoy all the conditions essential to a treaty of peace; so that any act, which, if committed against himself, would be a breach of the treaty, is no less a breach of it, if committed against the allies whom he has caused to be included in his treaty. If the injury be done to a new ally, or to one who is not included in the treaty, it may, indeed, furnish a new ground for war, but is no infringement of the treaty of peace. broken by (191) The second way of breaking a treaty of peace is by doing? 45. 2. The any thing contrary to what the particular nature of the treaty treaty is requires. Thus, every procedure that is inconsistent with what is conthe rules of friendship is a violation of a treaty of peace trary to its which has been concluded under the express condition of particular thenceforward living in amity and good understanding. To nature. favour a nation's enemies,-to give harsh treatment to her subjects, to lay unnecessary restrictions on her commerce, or give another nation a preference over her without reason,to refuse assisting her with provisions, which she is willing to pay for, and we ourselves can well spare,-to protect her factious or rebellious subjects,-to afford them an asylum,all such proceedings are evidently inconsistent with the laws. of friendship. To this list, may, according to circumstances, be also added the building of fortresses on the frontiers of a state, expressing distrust against her,-levying troops, and refusing to acquaint her with the motives of such step, &c. (191) But, in affording a retreat to exiles,-in harbouring subjects who chose to quit their country, without an intention of injuring it by their departure, and solely for the advantage of their private affairs,-in charitably receiving emigrants who depart from their country with a view to enjoy liberty of conscience elsewhere, there is nothing inconsistent with the character of a friend. The private laws of friendship do not, according to the caprice of our friends, dis (191) And see, ante, Book III. c. 3, as to what are just causes of war.-C. BOOK IV. CHAP. IV. 2 46. 3. By pense with our observance of the common duties of humanity Which we owe to the rest of our species. Lastly, the peace is broken by the violation of any of the the violation express articles of the treaty. This third way of breaking it of any arti- is the most decisive, the least susceptible of quibble or evasion. Whoever fails in his engagements annuls the contract as far as depends on him :-this cannot admit of a doubt. cle. 847. The violation of a single ar ticle breaks the whole treaty. But it is asked whether the violation of a single article of the treaty can operate a total rupture of it? Some writers,* here drawing a distinction between the articles that are connected together (connexi) and those that stand detached and separate (diversi), maintain, that, although the treaty be violated in the detached articles, the peace nevertheless still [450] subsists with respect to the others. But, to me, the opinion of Grotius appears evidently founded on the nature and spirit of treaties of peace. That great man says that all the articles of one and the same treaty are conditionally included in each other, as if each of the contracting parties had formally said, "I will do such or such thing, provided that, on your part, you do so and so;" and he justly adds, that, when it is designed that the engagement shall not be thereby rendered ineffectual, this express clause is inserted, that, "though any one of the articles of the treaty may happen to be violated, the others shall subsist in full force." Such an agreement may unquestionably be made. It may likewise be agreed that the violation of one article shall only annul those corresponding to it, and which, as it were, constitute the equivalent to it. But, if this clause be not expressly inserted in the treaty of peace, the violation of a single article overthrows the whole treaty, as we have proved above, in speaking of treaties in general (Book II. § 202). here be made be tween the more and ? 48. Whe- It is equally nugatory to attempt making a distinction in ther a dis- this instance between the articles of greater and those of tinction may lesser importance. According to strict justice, the violation of the most trifling article dispenses the injured party from the observance of the others, since they are all, as we have seen above, connected with each other, as so many conditions. the less im- Besides, what a source of dispute will such a distinction lay open! Who shall determine the importance of the article violated? We may, however, assert with truth, that, to be ever ready to annul a treaty on the slightest cause of complaint, is by no means consonant to the reciprocal duties of nations, to that mutual charity, that love of peace, which should always influence their conduct. portant articles. 49. Penalty an In order to prevent so serious an inconvenience, it is prudent to agree on a penalty to be suffered by the party who nexed to the violates any of the less important articles: and then, on his submitting to the penalty, the treaty still subsists in full force. † Lib. iii. cap. xix. & 14. * See Wolf. Jus Gent. 22 1022, 1023. CHAP. IV. In like manner, there may, to the violation of each individual BOOK IV. article, be annexed a penalty proportionate to its importance. We have treated of this subject in our remarks on truces violation of (Book III. § 243), to which we refer the reader. an article. Studied delays are equivalent to an express denial, and a 50. Studiffer from it only by the artifice with which he who practises died delays. them seeks to palliate his want of faith: he adds fraud to perfidy, and actually violates the article which he should fulfil. ments. But, if a real impediment stand in the way, time must be 51. Insurallowed; for no one is bound to perform impossibilities. And mountable for the same reason, if any insurmountable obstacle should impedirender the execution of an article not only impracticable for the present, but for ever impossible, no blame is imputable to him who had engaged for the performance of it; nor can his inability furnish the other party with a handle for annulling [451] the treaty but the latter should accept of an indemnification, if the case will admit of it, and the indemnification be practicable. However, if the thing which was to have been performed in pursuance of the article in question be of such a nature that the treaty evidently appears to have been concluded with a sole view to that particular thing, and not to any equivalent, the intervening impossibility undoubtedly cancels the treaty. Thus, a treaty of protection becomes void when the protector is unable to afford the promised protection, although his inability does not arise from any fault on his part. In the same manner, also, whatever promises a sovereign may have made on condition that the other party should procure him the restoration of an important town, he is released from the performance of every thing which he had promised as the purchase of the recovery, if he cannot be put in. possession. Such is the invariable rule of justice. But rigid justice is not always to be insisted on :-peace is so essential to the welfare of mankind, and nations are so strictly bound to cultivate it, to procure it, and to re-establish it when interrupted,―that, whenever any such obstacles impede the execution of a treaty of peace, we ought ingenuously to accede to every reasonable expedient, and accept of equivalents or indemnifications, rather than cancel a treaty of peace already concluded, and again have recourse to arms. subjects; We have already, in an express chapter (Book II. Chap. 352. InfracVI.), examined how and on what occasions the actions of tions of the subjects may be imputed to the sovereign and the nation. It treaty of is by that circumstance we must be guided in determining how peace by the far the proceedings of the subjects may be capable of annulling a treaty of peace. They cannot produce such effect unless so far as they are imputable to the sovereign. He who is injured by the subjects of another nation takes satisfaction for the offence, himself, when he meets with the delinquents in his own territories, or in a free place, as, for instance, on the open sea; or if it be more agreeable to him, he demands CHAP. IV. BOOK IV. justice of their sovereign. If the offenders are refractory subjects, no demand can be made on their sovereign; but whoever can seize them, even in a free place, executes summary justice on them himself. Such is the mode observed towards pirates: and, in order to obviate all misunderstandings, it is generally agreed that the same treatment be given to all private individuals who commit acts of hostility without being able to produce a commission from their sovereign. 53. Or by allies. The actions of our allies are still less imputable to us than those of our subjects. The infractions of a treaty of peace by allies, even by those who have been included in it, or who joined in it as principals, can therefore produce no rupture of it except with regard to themselves, and do not affect it in [452] what concerns their ally, who, on his part, religiously observes his engagements. With respect to him, the treaty subsists in full force, provided he do not undertake to support the cause of those perfidious allies. If he furnishes them with such assistance as he cannot be bound to give them on an occasion of this nature, he espouses their quarrel, and becomes an accomplice in their breach of faith. But, if he has an interest in preventing their ruin, he may interpose, and, by obliging them to make every suitable reparation, save them from an oppression of which he would himself collaterally feel the effects. It even becomes an act of justice to undertake their defence against an implacable enemy, who will not be contented with an adequate satisfaction. 254. Right of the offended party lated the treaty. When the treaty of peace is violated by one of the contracting parties, the other has the option of either declaring the treaty null and void, or allowing it still to subsist: for a against him contract which contains reciprocal engagements, cannot be who has vio- binding on him with respect to the party who on his side pays no regard to the same contract. But, if he chooses not to come to a rupture, the treaty remains valid and obligatory. It would be absurd that he who had been guilty of the violation should pretend that the agreement was annulled by his own breach of faith: this would, indeed, be an easy way of shaking off engagements, and would reduce all treaties to empty formalities. If the injured party be willing to let the treaty subsist, he may either pardon the infringement,insist on an indemnification or adequate satisfaction,-or discharge himself, on his part, from those engagements corresponding with the violated article, those promises he had made in consideration of a thing which has not been performed. But, if he determines on demanding a just indemnification, and the party in fault refuses it, then the treaty is necessa rily broken, and the injured party has a very just cause for taking up arms again. And indeed this is generally the case; for it seldom happens that the infractor will submit to make reparation, and thereby acknowledge himself in fault. BOOK IV. CHAP. V. OF THE RIGHT OF EMBASSY, OR THE RIGHT OF SENDING AND be enabled IT is necessary that nations should treat and hold inter- 355. It is course together, in order to promote their interests,-to avoid necessary injuring each other, and to adjust and terminate their dis- that nations putes. And as they all lie under the indispensable obligation to treat and of giving their consent and concurrence to whatever conduces communito the general advantage and welfare (Prelim. § 13)-of cate togeprocuring the means of accommodating and terminating their ther. differences (Book II. § 323, &c.) and as each has a right to every thing which her preservation requires (Book I. § 18)— [ 453 ] to every thing which can promote her perfection without injuring others (Ib. § 23), as also to the necessary means of fulfilling her duties,-it results from the premises, that each nation is at once possessed of the right to treat and communicate with others, and bound by reciprocal obligation to consent to such communication as far as the situation of her affairs will permit her. the agency of public But nations or sovereign states do not treat together im-2 56. They mediately and their rulers or sovereigns cannot well come do this by to a personal conference in order to treat of their affairs. Such interviews would often be impracticable; and, exclu- ministers. sive of delays, trouble, expense, and so many other inconveniences, it is rarely, according to the observation of Philip de Commines, that any good effect could be expected from them. The only expedient, therefore, which remains for nations and sovereigns, is to communicate and treat with each other by the agency of procurators or mandatories,—of delegates charged with their commands, and vested with their powers, that is to say, public ministers. This term, in its more extensive and general sense, denotes any person intrusted with the management of public affairs, but is more particularly understood to designate one who acts in such capacity at a foreign court. At present there are several orders of public ministers, and in the sequel we shall speak of them; but whatever difference custom has introduced between them, the essential character is common to them all; I mean that of minister, and, in some sort, representative of a foreign power, a person charged with the commands of that power, and delegated to manage his affairs: and that quality is sufficient for our present purpose. Every sovereign state then has a right to send and to re- 3 57. Every ceive public ministers; for they are necessary instruments sovereign |