Essay on a congress of nations, for the adjustment of international disputes without resort to arms : containing the substance of the refected essays

Front matter

SOCIETT OF INQUIRir;

LIBRARY

Theological Seminary,

Chapter I. Introduction And General Remarks

1. Self-love — 2. Man a social being — 3. Man as a rational being seeks alliance of others — 4. Of Conquest — 5. Of voluntary government — 6. Safety the chief object of government — 7. Nations moral persons — 8. International Law necessary for their government — 9. Difficulties anticipated — 10. Extent of the organization — 11. Want of power to enforce decrees.

1. Self-love is a passion universally predominant in the animal, man. It was born with him, is inherent in his nature, and is the mainspring of all his actions, while he continues in his natural state. In this state, man seeks the gratification of his animal passions, without regard to the welfare of others. As this is the case with every man in a state of nature, it follows, that every man is liable to come into conflict with every other man in his immediate neighborhood, and to resort to violence to gratify his lusts and passions. Hence, as was observed by Hobbes, “the

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natural state of man is war,” in which the strong and the cunning will always obtain the mastery over the weak and unsuspecting; and will rob, murder, and enslave them, whenever they think it expedient.

2. But man is a social being, and he feels it not good for him to be alone ; and he chooses to himself a partner of his joys and sorrows, whom, by force, fraud, or persuasion, he obtains. A family of children is the consequence. The parents are bound to one another, and to their children, by a softer, but as strong, a tie as self-love — or rather it is self-love extended to their partner and to their children. Hence come families, the germs of nations, bound together by affection to their clan, and governed by patriarchal authority, until they find it convenient or necessary to part, and each individual becomes the germ of a new family, tribe, or nation.

3. But man is also a rational animal, and he soon perceives that there are enjoyments which can more easily be procured by persuasion, than by force ; and that though he may be stronger than another individual, two other individuals may be stronger than he — that he cannot always be on the watch to preserve the property he has acquired by robbery, the chase, or agriculture — and that he also is subject to inconvenience from the theft, or violence, of others ; hence he soon finds himself compelled to make a certain convention, or agreement, with others, both inferiors and equals, both as an individual and as the head of a tribe. These compacts are guaranteed by religion, public opinion, and certain undefined laws of honor

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dependent on them ; but most of all by a general perception of the truth, that the happiness of the whole is best promoted by the subservience of the interests of the few to the interests of the many.

4. It would be pleasing to the philanthropist, if he could conceive that the ways abovementioned were the only ones in which states have been formed ; but, unhappily, it is not so. From the first ages, Nimrods, mighty men of war, by force or fraud, have enslaved other men, held them in bondage and vassalage, and been obliged to make laws for them, which have continued, with more or less severity, until those slaves and vassals have become more enlightened, and taken a part, or the whole, of the government into their own hands.

5. In some few cases, the people, feeling their incompetency to govern themselves, have been willing to continue under the paternal government of the elder branch of the family, and hereditary monarchy, at times accompanied with a change in the reigning family, has followed. Under these various forms of government, man has been infinitely happier, than he wojLild have been in a state of nature and anarchy ; and generally nations have, naturally and without consultation, taken that form of government best adapted to the people. For many nations, absolute monarchy is best, for some a limited monarchy, for a few a republican form, and for a few very small states, even a pure democracy is perhaps the best ; but the different features of all these forms of government are variously combined in infinite diversity, according to the genius of the people governed.

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6. The chief end and purpose of government is, to prevent one person from injuring another ; so that every one may sit under his own vine and fig-tree, with none to molest or make him afraid. This is the object of all our laws, and all the expensive machinery of government, which has taken care that no individual should molest his neighbor ; and when disputes arise, so far from leaving each individual to take his cause into his own hands, governments have provided courts of law to decide the controversy. In many governments, the legislative has been entirely separated from the judicial power, and the executive from both. In all of them, the impartiality of the judicial power has been in a ratio equal to the knowledge and virtue of the people. In some of these governments, laws have been made, not only for securing the rights of private individuals, but also of bodies corporate, and even of component parts of the empire which are for many purposes independent. No such thing has yet been done with respect to nations, though courts have been instituted, to decide controversies which have arisen between two or more members of the same confederacy of nations. Our object is to go one step further, and appoint a court, by which contests between nations shall be settled, without resort to arms, when any such controversy shall be brought, by mutual consent, before it.

7. By consent of all writers on international law, nations are considered as individual, moral persons, perfectly equal and independent of one another. Therefore, the same moral laws which ought to govern individuals, ought to govern nations. What is wrong for an individual, is wrong for a nation. In the intercourse of these moral persons, disputes will arise, injuries will be done, retaliation and revenge will follow, and, unless some means of terminating their disputes by amicable and rational methods are devised, war will be the consequence. There are three ways already in use, whereby war may be avoided. The first is, by cultivating a spirit of peace, which is the spirit of the gospel, and is as much the duty of nations as it is of individuals; by this means, injuries, especially if not very grievous, will be overlooked, or be passed by with a bare remonstrance, and an appeal to the moral sense of the nation that has inflicted the injury. The second is, by negotiation, where the subject in dispute is formally discussed and settled by reparation or compromise. If this cannot be done, the next step is mediation of a friendly power, accompanied with arbitration and the acceptance of the award. The last resort is war, which commonly increases, instead of remedying the evil. We propose a plan more likely to procure justice than either of these.

8. As government is an ordinance of God, necessary for the safety, happiness and improvement of the human race, and as it is absolutely necessary for the peace of society, that when the selfish passions of man come in conflict, the judgment of the case should not be left with the individuals concerned, but with some impartial tribunal ; so it is equally necessary, for the peace and happiness of mankind, that when the

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selfish passions of nations come in conflict, the decision of the case should not be left with an individual nation concerned, but should be referred to some great tribunal, that should give a verdict on the affairs of nations, in the same manner that a civil court decides the disputes of individuals. If it was desirable for individuals, bodies politic, and small independent tribes, to unite in some general system of jurisprudence, why is it not equally desirable for large tribes and nations to do the same 1

9. There are two difficulties in the way, which require our attention ; but it will be found that they may as easily be removed as were the difficulties attending the commencement and advancement of institutions for the adjudication of difficulties arising between individuals. The first of these is the want of a body of men to enact and promulgate laws for the government of nations ; the other is the want of a physical force to carry the decisions of a court of nations into execution.

10. As to the first difficulty, the formation of what we call a Congress of Nations is no greater than the assembling of any convention for the enactment of laws, by mutual consent, for the government of the parties represented. It is not expected, that such a combination of powers would be of a very great geographical extent, as it could only embrace the most civilized, enlightened, and Christian nations that could be represented at one great diet, by their ambassadors ; and there form a league and covenant, each with every one, and every one with each, that

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they would, in their future intercourse, be governed by the laws enacted by the diet or congress and ratified by the governments of all the powers so represented. The world has now a kind of code of voluntary international law, laid down by eminent civilians, which is, for the most part, respected, but which is not confirmed, by any compact or agreement, and on which the authors themselves often differ, so that what is now called the law of nations, is but little better than a nose of wax, which may be twisted either way, to suit the purposes of dominant nations.

11. The magnitude of the second difficulty is apparently greater, but it will be much reduced by reflection. It is true, it would not comport with the peace and happiness of mankind, to invest rulers with the power to compel an acquiescence in the decisions of a Court of Nations by arms; but if we look into the condition of man in a state of civilization, it will be found, that where one man obeys the laws for fear of the sword of the magistrate, an hundred obey them through fear of public opinion. But I would further observe, 1st, that public opinion has not yet been made to bear on nations, and little or no means have hitherto been used to make it bear on them. The plan we propose is one of the means eminently adapted to make it bear on them, as will be shown in the sequel. 2. We do not know what means the congregated wisdom of Christendom may devise for the enforcement of the decisions of a court of nations, by so regulating the intercourse of nations that a refractory member might be made to feel that its duty

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is its true interest. 3. As it is not intended that this court of nations shall judge any cases but such as are submitted to it by the mutual consent of both parties concerned, its decisions will have as much to enforce them as the decisions of an individual umpire, which has so often settled disputes between nations. 4. Though at the commencement of this system, its success may not be so great as is desirable, yet, as moral power is every day increasing in a geometrical ratio, it will finally take the place of all wars between civilized and Christian nations, much in the same manner as a civil court has taken the place of the judicial combat. With these preliminaries we now proceed to a more minute consideration of a Congress and a Court of Nations, each by itself.

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Chapter II. On The Organization Of The Proposed Congress Of Nations

1. A Congress of Nations a separate tiling from a Court of Nations — 2. Organization of the Congress — -3. Formation of a Code of International Law — 4. Progress necessarily slow — 5. No concern with internal affairs of Nations.

1. Our plan is composed of two parts, viz., a Congress of Nations and a Court of Nations, either of which might exist without the other, but they would tend much more to the happiness of mankind if united in one plan, though not in one body. A congress of ambassadors from all those Christian and civilized nations who should choose to unite in the measure, is highly desirable to fix the fluctuating and various points of international law, by the consent of all the parties represented, making the law of nations so plain that a court composed of the most eminent jurists of the countries represented at the Congress, could easily apply those principles to any particular case brought before them. Such a congress would provide for the organization of such a court ; but they would not constitute that court ; which would be permanent, like the Supreme Court of the United States, while the Congress would be transient or periodical, with a change of members like the Congress or Senate of the United States. It is not proposed that the legislative and judiciary bodies shall be 66

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united. The Congress of Nations, therefore, is one body, and the creator of the Court of Nations, which is another distinct body. Any nation represented at the Congress might change its delegates as often as it pleased, like other ambassadors, but the members of the court w^ould hold their offices during good behaviour.

2. The Congress of Nations would be organized by a convention, composed of ambassadors from all those Christian or civilized nations who should concur in the measure, each nation having one vote, however numerous may be the ambassadors sent to the convention. This convention would organize themselves into a Congress of Nations, by adopting such regulations and by-laws as might appear expedient to the majority. Those who would not agree with the majority would, of course, have leave to withdraw from the convention, which would then constitute the Congress of Nations, choose its president, vice-presidents, secretaries, clerks, and such other officers as they would see fit. New members might be received, at any time subsequent to the first organization of the Congress, by their embracing the rules already adopted and the nations sending them adopting the laws of nations enacted by the Congress, and duly ratified before their becoming members of the confedei’ation.

3. After organization, the Congress w'ould proceed to the consideration of the first principles of the law of nations as they are laid down by civilians and agreed to by treaties, throwing all the light which the

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congregated wisdom of the civilized world contains on the principles of international law, and applying those principles to classes of individual cases. No principle would be established, unless it had the unanimous consent of all the nations represented at the Congress, and ratified by all the governments of those nations, so that each and every principle would resemble a treaty, by which each nation represented bound itself to every other nation represented, to abide by certain expressed principles in their future intercourse with one another; which agreement or treaty shall not be annulled, except by the consent of all the parties making it.

4. That the progress of such a Congress would be very slow, it must be allowed ; but so far from being the worse, it would be the better for that, and more likely to produce permanent and useful results. It would not be necessary that each article of the compact, thus entered into, should be ratified by the nations concerned, before the Congress proceeded to settle other points ; but the whole, having been agreed on in Congress, could be submitted to the governments represented, and such points as should be unanimously adopted should be considered as settled points of international law, and the remainder left open for further investigation ; and thus all the most material points of international law would be for ever settled, and other points put in a fair way of being settled. The Court of Nations need not be delayed until all the points of international law were settled ; but its organization might be one of the first

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things for the Congress of Nations to do, and in the mean time, the Court of Nations might decide cases brought before it on principles generally known and acknowledged.

5. The Congress of Nations is to have nothing to do with the internal affairs of nations, or with insurrections, revolutions, or contending factions of people or princes, or with forms of government, but solely to concern themselves with the intercourse of nations in peace and war. 1st. To define the rights of belligerents towards each other ; and endeavor, as much as possible, to abate the horrors of war, lessen its frequency, and promote its termination. 2d. To settle the rights of neutrals, and thus abate the evils which war inflicts on those nations that are desirous of remaining in peace. 3d. To agree on measures of utility to mankind in a state of peace; and 4th, To organize a Court of Nations. These are the four great divisions of the labors of the proposed Congress of Nations.

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Chapter III. On The Rights Of Belligerents With Respect To Each Other

1. The rights of belligerents have their limits — 2. The right to declare war — 3. Are all means of destroying an enemy lawful ? — 4. Confiscation of private debts — 5. Detention of the subjects of an enemy — 6. Who may be made prisoners of war ? — 7. Property liable to capture — 8. Voyages of discovery — 9. Compacts with an enemy — 10. Of Truce — 11. Of Retaliation.

1. The rights of belligerents have their limits, even as they respect one another. Humanity has been shocked and outraged by excesses committed by them ; and there is no good reason why nations should not mutually agree to frown on all the cruelties of war which are unnecessary to the ostensible object of it. A nation, by declaring war, makes every subject of the country against whom war is declared, technically speaking, an enemy — hostis, a national enemy, not inimicus, or a personal enemy. It would be hard to show that the gospel has made any difference ; but man has ; and a person may be an enemy, according to the law of nations, who is a friend and brother, according to the law of God. If nations will continue to make war, they should endeavor to violate the law of God as little as possible, and put all practicable bounds to savage exhibitions of national enmity. The rights of belligerents over their enemies ought to be regulated by acknowledged principles ;

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and the condition of prisoners of war and of the vanquished should be, as much as possible, ameliorated. Vattel holds that prisoners of war may be made slaves, when we may lawfully kill them.* Burlamaqui thinks we may kill them in “cases of necessity.”! Formerly prisoners of war were enslaved or put to death without disgrace, and until a very late date, viz., the wars between Charles XII of Sweden, and Peter the great, of Russia, prisoners were made slaves during the war ; but the increased light of Christianity leaves but little to be done on this subject.

2. The question should be settled by the Congress, Whether a nation, unless attacked, has a right to declare war against another nation, or make reprisals, until it has resorted to all other means of obtaining justice, such as negotiation, and an offer to leave the dispute to arbitration, or to cast lots, or settle the dispute by the ordeal of battle by two or more champions 1 The last two modes of settling international difficulties are not seriously proposed in this age of light and good feeling, but only to show, that, however absurd they are in themselves, they are altogether better for both the parties concerned, and for the world at large, than the greater absurdity of war, and just as likely to do justice to the parties, at a much less expense of life and money. Many other questions should be solved by the Congress, such as the following ;

* See his Law of Nations, lib. iii, § 152. t Burlamaqui, part 3, c. v, § 8.

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3. Are all means of destroying an enemy lawful 1 Is it lawful to poison an enemy’s food, or his springs and wells of water, — to use poisoned arms, to fire at him such missiles as broken glass bottles and rusty nails, which inflict almost incurable wounds, without killing, — to make use of torpedoes, fireships, mines, &,c. Is assassination to be allowed ; and under what circumstances? Burlamaqui allows of assassination of an enemy under certain circumstances.* He reasons correctly and ingeniously, when he says, “If we may employ a great number of men to kill an enemy, we may certainly employ a less number,” though he doubts whether we may employ one of the enemy’s subjects to do it by falsehood and treason. But what is employing deserters, but hiring men to kill their compatriots ; and what are falsehood and treason, but stratagems of war? It is not morally worse to cut off an enemy by assassination, than by ambuscade, torpedo, or mine, and if I may do it by hiring traitors and deserters in masses, why may I not do it by a single traitor or deserter? How many allow of employing deserters or traitors in masses, who would shudder at the thought of employing a single deserter to do similar things ! By beginning to prohibit the employing of single deserters or traitors, Christian nations may, at length, come to prohibit the employment of deserters and traitors in masses.

4. Has a nation, by declaring war, a right to confiscate private debts due from the enemy to its own

Burlamaqui, part 4, c. vi, § 15.

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subjects 1 During the war of the American revolution, the Americans confiscated the private debts due from American to British subjects ; and as a bribe to betray the debts, a part of the spoils was offered to the debtors. This principle was afterward abandoned, and in the treaty of peace, indemnity to the British merchants was promised. Vattel thinks that a belligerent has a right to confiscate such debts, or at least to detain the payment during the war.* A Congress of Nations should settle this question.

5. Has a nation a right, on going to war, to detain the subjects of an enemy, either civil or military, who may happen to be in its territory ; and to what extent shall that right be exercised? — on the military only, or on civilians also? — on men only, or on women and children also, and on property ? On the breaking out of war after the short peace of Amiens, Napoleon detained the British subjects that were found in France, as prisoners of war, but how far he carried this principle, I do not know. His motives probably were to draw money, for their support, from England.

6. Who shall be considered as combatants and liable to be made prisoners of war? Formerly all the subjects of an enemy were considered combatants, and alike liable to be made prisoners of war and to be murdered, or sold into slavery. Civilized society, under the mild influence of Christianity, has much ameliorated the condition of conquered enemies, and but very few, except such as are found with arms in

Law of Nations, book 3, § 77.

their hands, are excluded from the list of non-combatants. It is verj desirable to extend this list, so as to include the man who catches whales, as well as the man who catches smaller fishes — the man who ploughs the ocean on his own peaceful business, as well as the man who ploughs the field.

7. What property of an enemy shall be liable to capture? Formerly all property, both public and private, real and personal, became the property of the captor. Now, private property on shore is respected, and property afloat only is captured. A merchant vessel, on the stocks, is not liable to capture ; on the water she is, except small vessels employed in the fisheries. Cicero observes, that it is not contrary to the law of nations to plunder a person whom we may lawfully kill.* But if we may plunder those only whom we may lawfully kill, then we should no longer plunder the peaceful merchant. May a conqueror seize private landed estate as the spoils of war ? May churches and public property of a civil nature be plundered by an enemy ? Burlamaqui allows it ; but it has become a reproach to any people to do it. The burning of the capitol at Washington was justified by the British on the plea of retaliation ; and even, on this plea, they begin to be ashamed of it.

8. A Congress of Nations might settle what protection should be afforded to the ships of enemies making voyages of discovery. The American government, and, I believe, the French also, agreed not to

* Cicero, De Officiis, lib. 3, c. vi.

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molest the squadron of Captain Cook. Missionary stations, settlements on barbarous coasts for benevolent purposes, light-houses, buoys, beacons, and even the military hospitals of the enemy, should be respected.

9. Is a compact made with an enemy at an end as soon as war is declared 1 Grotius is of opinion that contracts made with an enemy are binding. Pulfendorf doubts it.

10. What is the nature of a truce? and what formalities are necessary at its commencement and its end ? What rights does a belligerent give up by a truce ? and what does he retain ? What rights belong to heralds, flags of truce and cartels? How may intercourse be carried on between belligerents ? What security does a safe conduct concede? What is the nature of parole, ransom, and the giving of hostages ? Even in this day of comparative light, it may be well to put some limits to the right which a belligerent has over the person of his enemy by the general consent and treaty stipulations of all Christian nations, each being bound to all ; and a Congress of Nations is the only place where such a compact can be executed.

11. Cannot something be done to meliorate the barbarous custom of retortion and retaliation ; or at least to regulate it? How are spies, deserters, and prisoners who have violated their parole to be treated ? Is it not possible to put some limit to the power of a belligerent over the life of his enemy ? Is it allowable,

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under any circumstances, to kill unresisting persons, who have been guilty of no offence but being made enemies by proclamation 1 There is reason to hope, that much may be done to moderate the severity of war in all these particulars, in a body representing the congregated wisdom of Christendom ; and as the judicial combat gradually gave place to the grand assize, when the follies and cruelties of the ordeal by battle were exposed and mitigated, so the ordeal of war may gradually give place to a court of nations.

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Chapter IV. On Certain Rights Of Belligerents Which May Affect Neutrals Also

1. The rights of conquest — 2. Of Expatriation — 3. Privateering — 4. Neutrals found in an enemy’s camp.

1. Under this head there is one very important question to be settled by a Congress of Nations, viz., How long shall a territory remain in possession of the conqueror before it shall be considered as his own, so that he may convey it away to another nation, and for ever cut off the right of the former owner? One would naturally suppose, that when a treaty of peace is ratified, ceding the conquered or disputed territory, the right of the former possessor would for ever cease ; but this doctrine is disputed, and some Americans have hinted at a claim to the western coast of North America, on the ground that its relinquishment to England by Spain, was the effect of compulsion ; and that since the purchase of Louisiana and all which belonged to it, we stand in the place of Spain with respect to the north-west coast of America, and have a right to claim it, as soon as we are strong enough. We ought, however, to remember, that the cession of Louisiana to France, from whom we bought it, was also the effect of compulsion, and Spain would have an equal right to reclaim the whole from us.

The American forces in Georgia were authorized by government to receive Amelia Island in East Florida from whomever should be in possession of it. If we had received Texas into our Union, would it have been consistent with the existing law of nations'? The principles on which such things should be regulated, can only be settled by a Congress of Nations.

2. It is highly important to the peace of the world in general, and of Great Britain and the United States of America in particular, that the right of expatriation should be better understood than it is now. The American government claims the right of naturalizing foreigners in such a manner as to affect their allegiance to their native country. During the late Hvars in Europe, it was stated by a committee of the Congress of the United States, that 6257 Americans had been impressed into the navy of Great Britain ; but what proportion of them were natives of that powder, naturalized here, the committee do not state. The subject of impressment was the principal cause of the last war between Great Britain and America, though Great Britain had always disclaimed the right of impressing native Americans. Before another war breaks out in Europe, this principle of expatriation should be settled. Some may think that this article would come better in the next chapter ; but though the settlement of this question is of great importance with respect to neutrals generally, and to Great Britain and America in particular ; to all the rest of the world, it is of great importance as it respects belligerents also. Certainly a nation has a natural right to deal with her own subjects