demanding justice against them of the Porte, (c) and they partake very considerably of the character and importance of resident ministers. They are diplomatic agents under the name of consuls, and enjoy the rights and privileges which the Ottoman Porte recognizes in relation to the foreign ministers resident at Constantinople. (d) By treaty, an entire immunity is usually given to the persons, domestics, and effects of the resident consuls, and no consuls reside with the Barbary states but under the protection of treaties. (e)

(c) 1 Chitty, 71.

(d) Calliere, de la Manière de Negocier avec les Souverains, pt. i. 94, London ed. 1750. The whole Frank quarter of Smyrna is at this day under the jurisdiction of European consuls, and all matters touching the rights of foreign residents fall under the exclusive cognizance of the respective consuls. So the consuls of Barcelona, in the middle ages, were clothed with many of the functions of modern resident ministers. In the negotiations of the American minister, Mr. Cushing, with the Chinese government, in 1844, the former observed that, in the intercourse between Christian and Mahometan states the Christian foreigner was exempted from the jurisdiction of the local authorities, and subjected to the jurisdiction of the minister, consul, or other authorities of his own government. It was observed, in the Report of the Secretary of State, in 1846, already referred to, that by treaties of the United States with Turkey and China, offences committed by American citizens in those countries were to be tried and punished by the consuls; and the gov ernments of the countries, when required, were to afford aid to enforce consular decisions. [Ante, 42, n. 1.]

(e) Shaler's Sketches of Algiers, 39, 307. By the treaty of amity and commerce between the United States and the Sultan of Muscat, in Arabia, ratified on the 30th of June, 1834, American consuls may be appointed to reside in the ports of the Sultan, where the principal commerce is carried on (and which, of course, may include ports on the African coast, and in the island of Zanzibar, within the domains of the Sultan). Such consuls are to be exclusive judges of all disputes in suits wherein American citizens shall be engaged with each other, and to receive the property of American citizens dying within his dominions; and the persons and property of the consuls and of their households are to be inviolate. The consular establishment of the United States is very imperfect, and especially in relation to the countries in the East Indian regions. The claims of commerce, as well as the character of the United States, would seem to require that the functions of consuls, and the provision for their support, should be better regulated, and that they ought not to be left to the necessity of making their consular duties subsidiary to their business as merchants and factors. See a valuable plan in relation to consular establishments in the countries east of the Cape of Good Hope, in a pamphlet entitled "Outline of a Consular Establishment for the United States of America in Eastern Asia," and which is noticed in the North American Review for October, 1838, followed by some judicious reflections on the subject.

Consuls residing in the five free ports of China, established by the treaty of peace between Great Britain and China in 1842, have, by the subsequent commercial treaty in 1843, between those powers, enlarged consular functions, including those which are in some respects judicial and executive.

Considering the importance of the consular functions, and the activity which is required of them in all great maritime ports, and the approach which consuls make to the efficacy and dignity of diplomatic characters, it was a wise provision in the Constitution of the United States which gave to the Supreme Court original jurisdiction in all cases affecting consuls, as well as ambassadors and other public ministers; and the federal jurisdiction is understood to be exclusive of the state courts. (f) 1

(f) Commonwealth v. Kosloff, 5 Serg. & Rawle, 545; Hall v. Young, 3 Pick. 80; Davis v. Packard, 7 Peters, 276; Sartori v. Hamilton, 1 Green (N. J.), 107. See also infra, 298, 304.

1 A foreign consul cannot waive his exemption from suit in a state court, Valarino v. Thompson, 3 Seld. (7 N. Y.) 576; Griffin v. Dominguez, 2 Duer, 656; such courts have no jurisdiction, although there are other defendants, Naylor v. Hoffman, 22 How. Pr. 510. But they have jurisdiction of suits brought by consuls, Sagory v. Wissman, 2 Benedict, 240; and the United States courts have jurisdiction of suits against them, Gittings v.

Crawford, Taney, 1; St. Luke's Hospital v. Barklay, 3 Blatchf. 259; Graham v. Stucken, 4 Blatchf. 50; Bixby v. Janssen, 6 Blatchf. 315. Thus a consul may be sued in the United States District Court by one of his own nation to recover fees improperly exacted. Lorway v. Lousada, 1 Lowell, 77; 1 Am. Law Rev. 92. See Wheat. Lawrence's note 143, as to the privileges of consuls in various countries.

[59]

LECTURE III.

OF THE DECLARATION, AND OTHER EARLY MEASURES OF A STATE OF WAR.

IN the last Lecture we considered the principal rights and duties of nations in a state of peace; and if those duties were generally and duly fulfilled, a new order of things would arise, and shed a brighter light over the history of human affairs. Peace is said to be the natural state of man, and war is undertaken for the sake of peace, which is its only lawful end and purpose. (a) War, to use the language of Lord Bacon, (b) is one of the highest trials of right; for, as princes and states acknowledge no superior upon earth, they put themselves upon the justice of God by an appeal to arms. The history of mankind is an almost uninterrupted narration of a state of war, and gives color to the extravagant theory of Hobbes, (c) who maintains that the natural state of man is a state of war of all against all; and it adds plausibility to the conclusions of those other writers, who, having known and studied the Indian character, insist that continual war is the natural instinct and appetite of man in a savage state. It is doubtless true that a sincere disposition for peace, and a just appreciation of its blessings, are the natural and necessary result of science and civilization.

*48

* The right of self-defence is part of the law of our nature, and it is the indispensable duty of civil society to protect its members in the enjoyment of their rights, both of person and property. This is the fundamental principle of the social compact. An injury, either done or threatened, to the perfect rights of the nation, or of any of its members, and susceptible of no other redress, is a just cause of war. The injury may consist,

(a) Cic. de Off. 1, 11 and 23; Grotius, b. 1, c. 1; Burlamaqui, pt. 4, c. 1, sec. 4; Vattel, b. 4, c. 1.

(b) Bacon's Works, iii. 40.

(c) Leviathan, pt. 1, c. 13.

not only in the direct violation of personal or political rights, but in wrongfully withholding what is due, or in the refusal of a reasonable reparation for injuries committed, or of adequate explanation or security in respect to manifest and impending danger. (a) Grotius condemns the doctrine that war may be undertaken to weaken the power of a neighbor, under the apprehension that its further increase may render him dangerous. This would be contrary to justice, unless we were morally certain, not only of a capacity, but of an actual intention, to injure us. We ought rather to meet the anticipated danger by a diligent cultivation and prudent management of our own resources. We ought to conciliate the respect and good will of other nations, and secure their assistance, in case of need, by the benevolence and justice of our conduct. War is not to be resorted to without absolute necessity, nor unless peace would be more dangerous and more miserable than war itself. An injury to an individual member of a state is a just cause of war, if redress be refused; but a nation is not bound to go to war on so slight a foundation; for it may of itself grant indemnity to the injured party, and if this cannot be done, yet the good of the whole is to be preferred to the welfare of a part. (b) Every milder method of redress is to be tried, before the nation makes an appeal to arms; and this is the sage and moral precept of the writers on natural law.

* If the question of right between two powers be in any #49 degree dubious, they ought to forbear proceeding to extremities; and a nation would be condemned by the impartial voice of mankind, if it voluntarily went to war upon a claim of which it doubted the legality. But on political subjects we cannot expect, and are not to look for, the same rigorous demonstration as in the physical sciences. Policy is a science of calculations and combinations, arising out of times, places, and circumstances, and it cannot be reduced to absolute simplicity and certainty. We must act according to the dictates of a well-informed judgment, resting upon a diligent and careful examination of facts; and every pacific mode of redress is to be tried faithfully and perseveringly, before the nation resorts to arms.

1. Assistance to Allies in War. If one nation be bound by treaty to afford assistance, in case of war between its ally and a

(a) Grotius, b. 2, c. 1 and 22; Rutherforth, b. 2, c. 9; Vattel, b. 3, c. 3, sec. 26. (b) Grotius, b. 2, c. 22-25; Rutherforth, b. 2, c. 9.

third power, the assistance is to be given whenever the casus fœderis occurs; but a question will sometimes arise, whether the government which is to afford the aid is to judge for itself of the justice of the war on the part of the ally, and to make the right to assistance depend upon its own judgment. Grotius is of opinion (a) that treaties of that kind do not oblige us to participate in a war which appears to be manifestly unjust on the part of the ally; and it is said to be a tacit condition annexed to every treaty made in time of peace, and stipulating to afford succors in time of war, that the stipulation is only to apply to a just war. To give assistance in an unjust war on the ground of the treaty would be contracting an obligation to do injustice, and no such contract is valid. (b) But to set up a pretext of this kind to avoid a positive engagement is extremely hazardous, and it cannot be done, except in a very clear case, without exposing the nation to the imputation of a breach of public faith. In doubtful cases, the presumption ought rather to be in favor of our ally, and of the justice of the war.

* 50

*The doctrine that one nation is not bound to assist another, under any circumstances, in a war clearly unjust, is similar to the principle in the feudal law, to be met with in the Book of Feuds, compiled from the usages of the Lombards, and forming part of the common law of Europe during the prevalence of the feudal system. A vassal refusing to assist his liege lord in a just war, forfeited his feud. If the justice of the war was even doubtful, or not known affirmatively to be unjust, the vassal was bound to assist; but if the war appeared to him to be manifestly unjust, he was under no obligation to help his lord to carry it on offensively. (a)

A nation which has agreed to render assistance to another is not obliged to furnish it when the case is hopeless, or when giving the succors would expose the state itself to imminent danger. Such extreme cases are tacit exceptions to the obligation of the treaty; but the danger must not be slight, remote, nor contingent, for this would be to seek a frivolous case to violate a solemn engagement. (b) In the case of a defensive alliance, the condition

(a) B. 2, c. 25.

(b) Vattel, b. 2, c. 12, sec. 168; b. 3, c. 6, sec. 86, 87.

(a) Feud. lib. 2, tit. 28, sec. 1.

(b) Vattel, b. 3, c. 6, sec. 92.