CHAPTER IV, OF THE DECLARATION AND OTHER EARLY MEASURES OF A STATE OF WAR. In the preceding chapters we have 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'. "Wars," says Lord Bacon, "are no massacres and confusions, but they are the highest trials of right when princes and states shall put themselves upon the justice of God for deciding their controversies as it shall please Him to put on either side." The history of mankind is an almost uninterrupted narration of a state of war, and gives colour to the sarcastic theory of Hobbes3, 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 natural 1 Cic. de Off. 1. 11 and 23. Grotius, Book 1. Chap. 1. Burlamaqui, Part IV. Chap. 1. § 4. Vattel, Book IV. Chap 1. 2 Bacon's Works, edited by Basil Montague, Vol. v. p. 384. 3 Leviathan, Part 1. Chap. 13. The allusion in the text to an often cited though probably carelessly examined dictum of one of the most vigorous as well as one of the clearest thinkers England can boast of, affords an opportunity for a reference to an admirable exposition of the excellencies and errors of Hobbes as a teacher and guide in the science of Politics by one who himself was a sure and certain light in the science of Jurisprudence, the late Mr John Austin: see Vol. 1. p. 248 (note) of the recent edition of his works (1861). All pacific modes of be exhausted. 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. The right of self-defence is part of the law of our redress to 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, 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'. Grotius condemns the doctrine, that war may be undertaken to weaken the power of a neighbour, 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. [It is true that a just war, one that is undertaken for just causes, to repel or avert wrongful force, or to establish a right, cannot be impeached on any grounds, religious, moral, or political. And if it be carried to a successful issue, if force is repelled, wrong redressed, or 1 Grotius, Book II. Chap. 1. and 22 Rutherforth, Book 11. Chap. IX. Vattel, Book III. Chap. III. § 26. 2 Grotius, Book 11. Chap. XXII.-XXV. Rutherforth, Book II. Chap. IX. modes of redress hausted. imperilled rights established, for the evils which in its Pacific progress war has necessarily inflicted, there is large compensation. Yet, however large that compensation may to be exbe, it must take years to remove the evils of war and to efface the traces of misery and sorrow it ever brings with it. It is therefore the bounden duty of every nation to pause before it resolves to renounce all means of obtaining a pacific solution of a difficulty that may arise between it and another state, to remember that the time bestowed upon efforts to avert war and its horrors, however long, is never time misspent, and to remember also that when once the sword is drawn and an appeal to arms is made, not only may the decision be prolonged indefinitely but the issue itself must be doubtful'.] Of course if the question of right between two powers be in any degree dubious they ought to forbear proceeding to extremities, for that nation would be condemned by the impartial voice of mankind which voluntarily went to war upon a claim whose legality it doubted. But on political subjects we know that the same rigorous demonstration is not to be expected, as does exist in the physical sciences; for policy is a science of calculations and combinations arising out of times, places and circumstances, and influenced largely by passing events, and therefore there are times when calm judgment is liable to be overthrown by views of fancied expediency and reason set at nought by passion. But against this frame of mind it behoves all nations earnestly to guard. [In doubtful claims, at all events, nations can never be too deliberate in their resolutions, or too diligent and careful in their examination of facts. Nay, even in disputes where each side fancies it has a strong show of right, and therefore each is only too ready to watch with jealous distrustful eyes the attitude of the other, it is the bounden duty of each to strive calmly and temperately to investigate all the facts and to exhaust every pacific mode of redress before resorting to arms. Nor is the history of the last forty years without examples of such conduct on the part of three great nations in the case of claims and reclamations that might have produced terrible 1 See Annual Register for 1842, p. 321. 2 Schmalz, Le Droit des Gens Européens, traduit par le Comte de Bohm, Liv. vi. Chap. 1, p. 213. Pacific modes of redress to be exhausted. The case of the Caroline wars. Thus on two special occasions, when owing to peculiar circumstances the passions of the two nations were carried to an almost irrepressible point, the good sense and steady attitude of the Government of Great Britain and the United States saved the subjects of both from the miseries of war; about the same time too a judicious compromise settled a dispute relating to a question of boundary between the same powers that at one time wore a threatening and hostile look; whilst hostilities that were on the very verge of breaking out between Great Britain and France in consequence of an alleged insult to a British consul in Otaheite were averted by the calm judgment and the moderation of the statesmen by whom the two countries were ruled. A few words on these events will not be out of place here, because they are all of them most admirable examples of what some writers on International Law have classified as pacific settlements of disputes by way of friendly accoinmodation and compromise'. The first of the cases we are now engaged on arose out of the insurrectionary troubles that disturbed the Canadas in 1837 and 1838, and is known as the case of the Caroline, on account of the capture of a vessel of that name in American territory, followed by the arrest and trial of a British subject at New York, on the ground of implication in that affair. It would of course be out of place here to enter into the history of the events connected with the incident under discussion, and unnecessary, because a very clear and temperate account of the matter is given in Lord Ashburton's letter to Mr Webster, dated July 28, 1842, and to be found in the British and Foreign State Papers, 1841-2, Vol. xxx. p. 195. The only point of interest here lies in the fact, that a small passenger steamer, called the Caroline, was used by a number of insurgents and reckless people of the border to carry arms, and to transport armed men from the territory of the United States to that of the Canadas. This vessel the British officer in command (Colonel McNab) determined, at all hazards, to capture, expecting to find her moored on British ground, very near an island called 1 See Halleck, Chapter XII. §§ 3 and 4. Heffter, Droit International, § 109. Vattel, Book 11. Chap. xvi. §§ 226, 227. Caroline. Navy Island, on the Niagara River. It happened, how- The case ever, that the Caroline had been moved from her usual of the moorings to the other shore, which was American territory. Undeterred by this, or by the preparations made to beat off an attack, the attempt was made, and after a short but fierce resistance, the vessel was captured by boarding, and at once carried off. It may be imagined that this most daring act excited intense indignation in New York and Washington, and throughout the United States. Probably the galling circumstance that a small force of volunteers, aided by a few seamen, should have so successfully carried out their plans in spite of a strong and well-armed resistance, and in the sight of American sympathizers with the rebellion, added fuel to a flame that the other fact of the capture taking place in American territory would alone have been sufficient to kindle, and it appeared scarcely possible to avert a war between the two countries, especially when the anger of the people of Great Britain and of the Canadian loyalists was roused by the arrest and imprisonment of Mr Macleod, and his trial on an indictment for murder, alleged to have been made in the attack upon the Caroline. On the side of ComGreat Britain, then, the causes for complaint against the Great plaints of United States Government were, that a lawless expedi- Britain. tion was allowed to be organized on American territory, without an effort, on the part of the Executive, to prevent or repress it; that the seditious movements against Canada were supported by bands of American citizens, and armed from American arsenals; and that a British subject was arrested and put upon his trial for a transaction of a public character, sanctioned by the constituted authorities of his government, in contravention of the universal practice of civilized nations. On the side of Comthe United States it was complained, that the attack upon the Caroline went beyond the limits of the law that United allows an act of this kind, under the necessity of selfdefence, instant, overwhelming, leaving no choice of means, and no moment for deliberation; that it was an attack upon a passenger ship, and on unarmed passengers and crew, and at night; that even if justifiable on the ground of self-defence, it was a violation of the territory of the United States; and that though the case had immediately been brought to the attention of the British plaints of the States. |