=Observance of treaties.=--Obligatory character of treaties: testimony of Cardinal Richelieu.

The human race being divided into divers particular societies called _States_ or _nations_, those different bodies stand toward each other as individuals; they are subject to the primitive laws existing naturally among all men, and they are obliged to practice certain duties toward each other.

=112. International law.=--General principles.--It is this body of laws which is called _international law_, and which is nothing more than the natural law itself, or the moral law applied to nations.

It is by virtue of this natural law that the nations ought to consider each other equals, and independent of each other; that they should not injure each other, and should make each other, on the contrary, reparation for injury done. Hence the right of self-defense in case of attack, of repelling and restraining by force whatever violence may threaten or oppress them.

When nations practice toward each other the prescriptions of the natural law, they are in a state of _peace_ with each other; when they are obliged to resort to force to repel injustice, they are in a _state_ of _war_.

=113. War.=--It is evident that in all nations the ruler, whoever he be (the people, n.o.bles, or king), ought to have the right to carry on war; for it is nothing else than the _right of self-defense_, and this right is the same for the nation as for individuals. War is, then, legitimate in principle; but in fact, it may be _just_ or _unjust_ according as it takes place for good or bad reasons, and sometimes for no reason at all.

=114. Reasons of a just war.=--It is not easy to say in advance and in a general manner, what may be the reasons of a just war; for they vary according to circ.u.mstances; they may be all reduced to one fundamental principle, namely, the defense of the national territory when threatened.

Moreover, a war may be undertaken not only in self-defense, but to protect allies when they are unjustly attacked. As for the following reasons, more or less frequently alleged as pretexts for war, good morality cannot justify them:

1. Thus, the fear of the powerful neighbor, giving, for example, as a pretext that he erects new citadels on his lands, organizes an army, increases his troops, etc., is not a sufficiently just reason for war.

2. Utility does not give the same right as necessity: for example, arms could not legitimately be resorted to in order to gain possession of a place which might suit our convenience, and be proper to protect our frontiers.

3. The same may be said of the desire to change dwelling-place, to leave marshes, deserts, in order to settle in a more fertile country.

4. It is no less unjust to make attempt upon the rights and liberties of a people under pretext that they are less intelligent or less civilized than we are. The cause of civilization is, then, not a cause for just war so long as we have not ourselves been attacked by barbarians.

5. Nor is it just to conquer a people under pretext that our conquest may be to its advantage, bring it riches, or liberty, or morality, etc.

=115. Defensive and offensive wars.=--We distinguish two kinds of war, _defensive_ and _offensive_. The first consists in defending the national territory, the second, in attacking the enemy's territory.

It would be a mistake to confound defensive and offensive wars with just and unjust wars, and to believe that only the defensive wars are just, and all offensive ones unjust. This distinction has nothing to do with the causes of the war, but concerns the manner of engaging in it; sometimes one's interest lies in allowing one's self to be attacked, sometimes in attacking. He who has done us injustice may very well wait for us to come to him, instead of carrying arms to us; this does not prove him to be in the right. He who, on the contrary, takes up arms to obtain reparation for an injustice or an insult, does not prove thereby that he is in the wrong.

=116. Precautions and preparations.=--Even in the case of just causes, there are certain precautions and preparations necessary in order that the war be called a just one.

1. The subject must be of great consequence. It is criminal, for a frivolous cause, to expose men to all the evils that accompany a war, even the most fortunate.

2. There must be some probability of success: for it would be criminally rash to expose one's self foolhardily to certain destruction and, to avoid a lesser evil, throw one's self into a greater.

3. If we had no gentler means at our disposal.

There are two ways of settling a dispute between nations, without recourse to arms: 1, an _amicable conference_ between the parties; 2, the intervention of a disinterested third party, or _arbitrament_. A third means, much rarer and now abandoned, is that of _casting lots_. When all the means of settling the difficulty amicably have been exhausted, there remains, before taking up arms, a final obligation, namely, to declare to the enemy the resolution of employing the last means: this is what is called a _declaration of war_.

=117. Duties in times of war.=--War having become a sad and unavoidable necessity between nations, and the use of force determined on, it behooves as much as possible to restrict it in its effects, and to reconcile the rights of humanity with those of justice. Hence, certain rules established by jurisconsults who have treated these matters, and notably Grotius, the founder of international law.

The fundamental principle of the right of war is the following: All that has a morally necessary connection with the purpose of the war is allowed, but nothing more. In fact, it would be wholly useless to have the right to do a thing, if, to accomplish it, one could not employ the necessary means thereto; but, on the other hand, it would not be just if, under the pretext of only defending one's rights, one should believe that everything is permitted, and should resort to the last extremities.

From this general principle are deduced the following consequences, which are only its applications:

1. It is certain that it is lawful to kill the enemy's soldiers, and, in fact, the purpose of the war being to constrain the enemy to recognize the justice of our cause, it would be vain to take up arms if one could not use them. It is then one of the cases where manslaughter may be considered innocent, and justified by the right of personal self-defense. (See above, Ch. iii., p. 50.)

2. However, the right of death upon the enemy has its limits. As a principle, it only extends to those who carry arms, and not to private individuals who do not defend themselves, arms in hand. Such can only accidentally become the victims of the war: for instance, it is impossible in a battle to protect the inhabitants of a disputed village against the b.a.l.l.s of either party; but we should not knowingly strike dead those who do not defend themselves.

3. Strangers should be allowed to quit a country exposed to war; and if obliged to stay, they should be no further exposed than to share its inevitable perils with the other citizens.

4. Prisoners of war should be neither killed nor reduced to slavery, but simply prevented from doing mischief.

As to the means employed to deprive an enemy of his life, humanity, with just reason, interdicts the use of certain cowardly and perfidious means; as, for instance, poisoned bullets, or too cruel means of destruction, or lastly, a.s.sa.s.sination.

Thus, it would be odious to send traitors secretly charged to kill the hostile general. There is, besides, no example of such attempts in modern wars, and the human conscience would unanimously reprove them.

Thus much concerning the rights war gives over the lives of enemies. Let us consider now the duties regarding property.

1. War gives the right to destroy the property of the enemy; it is what is called the _right of ravage_. But ravage should not be pursued for its own sake, but only to weaken the enemy. Thus we should as much as possible spare public monuments, works of art, etc.

2. It is a right of war to acquire and appropriate things belonging to the enemy until agreement as to the moneys due, including the expenses of the war.

3. It is by virtue of these principles that, in case of naval encounters, it is justifiable to take possession of the enemy's vessels, and not only of men-of-war, but of merchant-men and the goods they carry.

4. This right upon the enemy's property is only the sovereign's; he alone has a right to appropriate, in the name of the State, the property of the invaded territory, by way of rest.i.tution or guaranty; but war does not confer upon single individuals the right of taking possession of people's property and appropriating it: this is simply pillage.

=118. Conquest.=--We call _right of conquest_ the right which belongs to a State to bring under its sovereignty the whole or part of another State, by virtue of the right of war. Conquest, it will be seen, is but the right of the strongest. It is contrary to the principle of modern political societies, which requires that the State rest on the free contract of citizens, and that a people should only be subject to laws consented to.

It is not easy to have an official authentication of this consent; but it is certain that there are annexations that are voluntary, and others that are not. The latter, it must be hoped, will become less and less frequent as the idea of justice among nations develops.

=119. Neutrality.=--We call _neutrality_ the situation of States which, in a case of war, side with neither the one nor the other of the belligerents, but remain at peace with the two parties. They are, therefore, obliged to practice toward them the laws of natural right impartially: if, for example, they render to one a service of humanity, they must not refuse the same service to the other. They must not furnish means of hostility to either the one or the other, or they must furnish them to both. They must lend their good offices for a settlement if they have any chance of being listened to.

These rules are very simple; but, practically, the situation of neutrals is a very delicate one, and gives rise to numerous difficulties, for the solution of which, resort must be had to the special treatises on the law of nations.

=120. International treaties: their characters: their forms.=--We have seen that nations have among each other, the same as individuals, obligations and rights which they derive from the natural law. But there are other obligations and other rights which are no longer based on nature, but on _special contracts_ or _usages_. The international law which bears on usages is called _customary right_; that which comes from compacts, is called _conventional right_. The compacts between States are called _treaties_.

Treaties are _equal_ or _unequal_, according as they promise equal or unequal things; _personal_ or _real_, according as they relate only to certain persons, and during their lives, or as they are independent of persons and last as long as the State itself; _pure_ and _simple_ or _conditional_; in the first case the stipulations are absolute; in the second they depend on certain conditions.

There are different species of treaties according to their different objects: treaties of _alliance_; treaties of _boundaries_; treaties of _cession_; treaties of _navigation_ and _commerce_; treaties of _neutrality_; treaties of _peace_.

=121. Essential conditions of public treaties.=--As a principle, the rules which govern international compacts are (with the exception of a few differences) the same as those which govern private compacts. There are three fundamental conditions: 1, the consent; 2, a licit cause; 3, the capacity of the contracting parties. (See above, 92.)

The _consent_ should be: 1, declared; 2, free; 3, mutual.

The licit causes are those which are physically possible or morally legitimate; the illicit causes are those which are contrary to morality, as, for example, would be the establishment of slavery.

The capacity of making a compact belongs to the sovereign of the State alone; but it is necessary that this sovereign be really invested with the power. A sovereign stripped of his sovereignty has no power to make compacts, although he might have all the most legitimate rights; and, on the other hand, a usurping power can legitimately make compacts. The reason of this is, that foreign nations are not capable to decide what with another people const.i.tutes the legitimacy or non-legitimacy of power: there is for them, therefore, only the power _de facto_. Yet this is but the general rule. There may be cases where a foreign government may refuse to recognize a usurper's power.

=122. Observance of treaties.=--The obligation to observe treaties is based on the natural law. Whether compacts take place between States or individuals, it matters little. The States, in respect to each other, are like private individuals. Certain publicists, particularly Machiavelli, have maintained that the obligation to observe treaties only lasts as long as these accord with our interests. As much as to say that one should not make any compacts. Besides, Machiavelli's opinion is in such disrepute that it is almost useless to discuss it. We will content ourselves with setting against it the following beautiful thought of a great politician:

Kings should be very careful in making treaties, but when once made, they must observe them religiously. I know very well that many politicians teach the contrary; but without stopping to consider what Christianity has to say regarding these maxims, I maintain that, since the loss of honor is greater than that of life, a great prince should rather risk his person, and even the loss of his State, than break his word, which he cannot break without losing his reputation, consequently, his greatest strength as a sovereign. (Cardinal de Richelieu, _Testament politique_, 2{e} partie, ch. vi.)

CHAPTER X.