follows that, though the universal law of mankind obliges us to grant, at all times, and to all, even to our enemies, those offices which are of a tendency to render them more moderate and virtuous, because no inconveniency is to be feared from such dispositions, yet we are not obliged to give them such succours as probably may be pernicious to ourselves. Thus, the exceeding importance of trade, not only to the wants and conveniences of life, but likewise to the forces of a State for furnishing it with the means of defending itself against its enemies, and the insatiable avidity of those nations which seek totally to engross it exclusive of others; thus, I say, these circumstances authorise a nation, possessed of a branch of trade, or the secret of some important manufacture or fabric, to reserve to itself those sources of wealth, and so far from communicating them, to take measures against it; but things necessary to the life or conveniency of others, this nation must sell them at a reasonable price, and not abuse its monopoly by iniquitous and hateful exactions. As to things more directly useful for war, a people is under no obligation of selling them to others of whom it has any wellgrounded suspicion; and even prudence declares against it.'1 § 25. Nothing tends more to the peace of the world, and the general comity and intercourse of nations, than mutual friendship and kind offices.2 The cultivation of international 1 Vattel, Droit des Ethics, b. iii. §§ 65–67. 2 Gens, liv. ii. ch. i. §§ 15, 16; Leiber, Political Among the good offices, which Maritime States are mutually interested in rendering to each other, are due facilities for recovering deserters. By the 15 and 16 Vict. cap. 26, it is enacted that whenever it is made to appear to the British Government that due facilities will be given for recovering and apprehending seamen who desert from British merchant ships in the territories of any foreign power, an Order in Council, stating that such facilities are or will be given, may declare that seamen, not being slaves, who desert from merchant ships belonging to a subject of such power when within British dominions, shall be liable to be apprehended and carried on board their respective ships, and the operation of such order may be limited, and made subject to such qualifications as may be deemed expedient. Every justice of the peace or other officer having jurisdiction in the case of seamen who desert from British merchant ships in British dominions, shall, on application being made by a Consul of the foreign power to which such Order in Council relates, or his representative, aid in apprehending any seaman or apprentice who deserts from any merchant ship belonging to a subject of such Power, and may, upon complaint on oath duly made, issue his warrant for the apprehension of such deserter, and upon due proof of the desertion, order him to be conveyed on board the vessel to which he belongs, or to good-will and friendship is, therefore, one of the first and highest duties imposed upon every sovereign State. Rulers, however, are too apt to neglect this duty, and to seek to exalt their own patriotism by depreciating other countries, and inciting in their own people feelings of unkindness and hostility to their neighbours. Such conduct is very reprehensible, and its results are generally dangerous, if not disastrous. For the authorities of one State to abuse and depreciate the government of another, is a sure indication of weakness and want of civilisation and refinement. National irritability is mentioned by Dymond as a most prominent cause of war. 'It is assumed,' he says, 'not indeed upon the most rational grounds, that the best way of supporting the dignity, and maintaining the security of a nation, is, when occasions of disagreement arise, to assume a high attitude and a fearless tone. We keep ourselves in a state of irritability, which is continually alive to occasions of offence, and he that is prepared to be offended, readily finds offences. . . . So well, indeed, is national irritability known to be an efficient cause of war, that they who, from any motive, wish to promote it, endeavour to rouse the temper of a people by stimulating their passions, just as the boys in our streets stimulate two dogs to fight. These persons talk of insults, or the encroachments, or the contempts of the destined enemy, with every artifice of aggravation; they tell us of foreigners who want to trample upon our rights, of rivals who ridicule our power, of foes who will crush, and of tyrants who will enslave us. They pursue their object, certainly, by efficacious means; they desire war, and, therefore, irritate our passions; and when men are angry, they are easily persuaded to fight.' 1 be delivered to the owner or his agents, or to the master or mate of such vessel, to be conveyed on board. Any person who protects or harbours any deserter, liable to be apprehended under this Act, and having reason to believe that the same has deserted, shall be liable to a penalty of ten pounds. Every Order in Council under this Act shall be published in the London Gazette. In questions of collision on the high seas, foreign vessels are bound by the customary Maritime Law, and not by municipal regulations. See the 'Zollverein' 4 W. Rep., 555; the 'Borussia' 4 W. Rep., 503; the 'Rumena' (May 24, 1856), Shipping Gazette; the Sylph' Swab. Adm. R., 233; the Herefordshire' (Dec. 19, 1857), Shipping Gazette. Dymond, Essays on the Prin. of Morality, essay iii. ch. xix. ; De Felice, Droit de la Nat., etc., tome ii. lec. xvi. 413 CHAPTER XIV. SETTLEMENT OF INTERNATIONAL DISPUTES. 1. Duty of moderation in international disputes-2. Two classes of means for their settlement-3. Amicable accommodation-4. Compromise-5. Mediation-6. Rejection of offers of mediation-7. Arbitration-8. Conferences and congresses-9. Retortion-10. Retaliation-11. Nature of reprisals-12. General and special reprisals—13. Positive and negative reprisals-14. Seizure of the thing in dispute15. Necessity of proving title before seizure-16. Reprisals upon persons-17. Seizure and punishment of the individuals offending18. If the government of the offenders assume their acts-19. Case of McLeod-20. Decision of the New York court-21. Opinion of Mr. Webster-22. The New York decision not authority-23. Opinions of American writers-24. Opinions of European publicists-25. Embargoes of property found within territory of injured State-26. General effect of reprisals, seizures and embargoes-27. Sir William Scott's opinion of the embargoes of 1803-28. Reprisals and embargoes, by whom authorised-29. In general, not in favour of foreigners-30. May be in favour of domiciled aliens. § 1. THE precepts of morality, as well as the principles of public law, by which human society is governed, render it obligatory upon a State, before resorting to arms, to try every pacific mode of settling its disputes with others, whether such disputes arise from rights denied or injuries received. This moderation is the more necessary, as it not unfrequently happens that what is at first looked upon as an injury or an insult, is found, upon a more deliberate examination, to be a mistake rather than an act of malice, or one designed to give offence. Moreover, the injury may result from the acts of inferior persons, which may not receive the approbation of their own government. A little moderation and delay in such cases may bring to the offended party a just satisfaction; whereas rash and precipitate measures often lead to the shedding of much innocent blood. The moderation of the government of the United States, in the case of the burning of the American steamboat 'Caroline,' in 1837, by a British officer,' led to an amicable adjustment of the difficulties arising from a violation of neutral territory, and saved both 1 See post, pp. 429-31. The modera countries from the disasters of a bloody war. tion of the British admiral, in the recent affair at San Juan Island, is deserving of the highest praise.' § 2. The different modes of terminating disputes between independent States, short of actual war, are divided into two classes: first, amicable, or measures taken vid amicabili; and second, forcible, or measures taken viâ factâ. The amicable modes or measures have been variously divided by publicists; the division most generally adopted is, into accommodation, compromise, mediation, arbitration, and conference. The forcible modes or measures are commonly known as retortion, retaliation, reprisal, seizure, and embargo. These divisions are, perhaps, not the most natural, nor are the lines of distinction between them always obvious or easily drawn. Nevertheless, as they have been adopted by writers of authority, and as these several terms are frequently used in works on international law, and require to be defined, we shall proceed to discuss each one separately. 3. Amicable accommodation is where each party candidly examines the subject of dispute, with a sincere desire to preserve peace, by doing full justice to the other. In such cases, all doubtful points of etiquette will be yielded, and all uncertain and imaginary rights will be voluntarily renounced in order to effect an amicable adjustment of differences. If no compromise of the right in dispute can be effected, the question will be avoided by the substitution of some other arrangement which may be mutually satisfactory. Such conduct is worthy of great and magnanimous nations; weaker States seldom act with so much moderation. An example of amicable accommodation is found in the adjustment, by the treaty of Washington, in 1842,2 of the differences between the United States and Great Britain, with respect to the right claimed by the latter to visit the vessels of the former in search for slavers on the coast of Africa. 4. Compromise is where the two parties, without attempting to decide upon the justice of their conflicting pretentions, agree to recede on both sides, and either to divide the thing in dispute, or to indemnify the claimant who surrenders his 1 Webster, Dip. and Off. Papers, pp. 104 et seq.; President's Message, Dec., 1859. For the further history of this affair, see ante, p. 152. 2 But see post, ch. xxvii. § 9. share to the other. As examples of compromise, we may refer to the negotiations terminating in the treaty of 1842, by which the Maine boundary question was satisfactorily adjusted, and to the negotiations terminating in the treaty of 1846, by which the Oregon difficulty was formally disposed of. Accommodation is a particular kind of compromise, and has therefore been deemed by some to be improperly classed as a distinct measure.1 § 5. Mediation is where a common friend interposes his good offices to bring the contending parties to a mutual understanding. As this friend acts the part of a conciliator, rather than a judge, he may, while favouring the well-founded claims of one party, seek to induce him to relax something of his pretensions, if necessary, in order to secure peace. The mediator is essentially different from the arbitrator, although he frequently assumes the latter office also; he does not decide upon any of the matters in dispute, but merely seeks to reconcile conflicting opinions, and to moderate adverse pretensions. By thus calming the minds of the disputants, and disposing them to a reasonable accommodation or compromise, the mediator may often avert the evils and calamities of a resort to war. The task is a very delicate one, and the office of mediator requires great integrity and strict impartiality, for unless he possess these qualities in a pre-eminent degree, his efforts will not be likely to bring about the desired reconciliation of the disputants. Hubner deems it incumbent, upon neutrals generally, to act the part of mediators, in order to prevent, if possible, the breaking out of war. But Galiani is of opinion that, although the post of mediator may be accepted, the office is rather to be avoided than sought, on account of the danger to the mediator of compromising his neutrality. Phillimore prefers the Christian principle of Hubner to the more safe expediency of Galiani, but adds that much must depend upon the subject of dispute, the character of the disputants, and upon the position and authority of the State which tenders the good offices.' 2 1U.S. Statutes at Large, vol. viii. p. 582, etc. 2 Phillimore, On Int. Law, vol. iii. § 4; Hubner, De la Saisie des Bâtiments Neu., tome i. pt. i. ch. ii. § 11; Galiani, De' Doveri dei Principi Neu., ch. ix. p. 162. The termination of the 23rd Protocol preceding the Treaty of Paris is as follows: |