Imagens das páginas

the earlier and more intemperate stages of their revolution. We may cite, also, the invasion of Naples by Austria in 1821, and the invasion of Spain by France in 1823, under the pretext of putting down a dangerous spirit of internal revolution and reform, as instances of the same violation of the absolute equality and independence of nations. Every nation has an undoubted right to provide for its Rule of

Interference own safety, and to take due precaution against distant as well as impending danger. A rational fear is said to be a justifiable cause of war. Posse vicinum impediri, ne in suo solo, sine alia causa suaque evidenti utilitate, munimentum nobis propinquum extruat, aut aliud quid faciat, unde justa formido periculi oriatur. The danger must be great, distinct, and imminent, and not rest on vague and uncertain suspicion. The British government officially declared to the allied powers in 1821, that no government was more prepared than their own, “to uphold the right of any state or states to interfere where their own security or essential interests were seriously endangered by the internal transactions of another state. That the assumption of the right was only to be justified by the strongest necessity, and to be limited and regulated thereby. That it could not receive a general and indiscriminate application to all revolutionary movements, without reference to their immediate bearing upon some particular state or states; that its exercise was an exception to general principles of the greatest value and importance, and as one that only properly grows out of the circumstances of the special case ; and exceptions of this description could never, without the utmost danger, be so far reduced to rule, as to be incorporated into the ordinary diplomacy of states, or into the institutes of the law of nations.",

a Vattel, b. 2. c. 4. sec. 49, 50. b Huber de Jure civitatis, lib. 3. c. 7. sec. 4. c Lord Castlereagh's circular despatch of January 19, 1821.

cases of revolt.

The limitation to the right of interference with the internal concerns of other states, was defined in this instance with uncommon precision; and no form of civil government which a nation may think proper to prescribe for itself, can be admitted to create a case of necessity justifying an interference by force ; for a nation, under any form of civil policy which it may choose to adopt, is competent to preserve its faith, and to maintain the relations of peace and amity with other powers.

It is sometimes a very grave question, when and how far

one nation has a right to assist the subjects of another, who Assistance in have revolted, and implored that assistance. It is said, a that

assistance may be afforded consistently with the law of nations, in extreme cases, as when rulers have violated the principles of the social compact, and given just cause to their subjects to consider themselves discharged from their allegiance. Vattel mentions the case of the Prince of Orange as a justifiable interference, because the tyranny of James II. had compelled the English nation to rise in their defence, and call for his assistance. The right of interposition must depend upon the special circumstances of the

It is vot susceptible of precise limitations, and is extremely delicate in the application. It must be submitted to the guidance of eminent discretion, and controlled by the principles of justice and sound policy. It would clearly be a violation of the law of nations, to invite subjects to revolt who were under actual obedience, however just their complaints; or to endeavour to produce discontents, violence, and rebellion, in neighbouring states, and under colour of a generous assistance, to consummate projects of ambition and dominion. The most unexceptionable precedents are those in which the interference did not take place until the new states had actually been established, and sufficient means and spirit had been displayed to excite a confidence


a l'attel, b. 2. c. 4. sec. 56. Rutherforth, b. 2. c. 9. See also Grolius, lib. 2. ch. 25. sect. 3. Puff. b. 8. ch. 6. sect. 14.


in their stability. The assistance that England gave to the United Netherlands when they were struggling against Spain, and the assistance that France gave to this country during the war of our revolution, were justifiable acts, founded in wisdom and policy. And it is not to be doubted that the government of the United States had a perfect right, in the year 1822, to consider, as it then did, the Spanish provinces in South America as legitimate powers, which had attained sufficient solidity and strength to be entitled to the rights and privileges belonging to independent states.

Nations are at liberty to use their own resources in such manner, and to apply them to such public purposes, as they may deem best, provided they do not violate the perfect Treation not rights of other nations, nor endanger their safety, nor in- affected by fringe the indispensable duties of humanity. They may government. contract alliances with particular nations, and grant or withhold particular privileges, in their discretion. By positive engagements of this kind, a new class of rights and duties is created, which forms the conventional law of nations, and constitutes the most diffusive, and, generally, the most important branch of public jurisprudence. And it is well to be understood, at a period when alterations in the constitutions of governments, and revolutions in states, are familiar, that it is a clear position of the law of nations, that treaties are not affected, nor positive obligations of any kind with other powers, or with creditors, weakened, by any such mutations. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in the form of its civil government. The body-politic is still the same, though it may have a different organ of communication, So, if a state should be divided in respect to territory, its rights and obligations are not impaired, and if they have

a President's Message to Congress of 8th of March, 1922, and act of Congress of 4th of May, 1822. ch. 52.

6 Burlamaqui, Nat. and Pol. Law, vol. 2. part 4. ch. 9, sec, 16. Rutherforth's Institutes, b. 2. ch. 10. VOL. I.


not been apportioned by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by all the parts in common.a

The extent of jurisdiction over the adjoining seas, is often a question of difficulty and of dubious right. As far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. Navigable rivers which flow through a territory, and the sea-coast adjoining it, and the navigable waters included in bays, and between headlands and arms of the sea, belong to the sovereign of the adjoining territory, as being necessary to the safety of the nation, and to the undisturbed use of the neighbouring shores. The open sea is not capable of being possessed as private property. The free use of the ocean for navigation and fishing, is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated. The subjects of all nations meet there, in time of peace, on a footing of entire equality and independence. No nation has any right of jurisdiction at sea, except it be over the persons of its own subjects, in its own vessels; and so far territorial jurisdiction may be considered as preserved, for the vessels of a nation are, in many respects, considered as portions of its territory, and persons on board are protected and governed by the law of the country to which the vessel belongs. This jurisdiction is confined to the ship; and no one ship has a right to prohibit the approach of another at sea, or to draw round her a line of territorial jurisdiction, within which no other is at liberty to intrude. Every vessel, in time of peace, has a right to consult its own safety and convenience,

Juusdiction ovor alljoining seas.

a Rutherforth, h. 2. eh. 10

b Grotius, b. 2. c. 2. sec. 12–c. 3. sec. 7. Puff. b. 3. c. 3. sec. 4b. 4. c. 5. sec. 3 and 8. Valtel, b. 1. ch. 22. 23.

c Grotius, b. 2. c. 3. sec, 10 and 13. Rutherforth, b. 2. c. 9. Valtel, b. 1. c. 19. sec. 216. 2 Barnwell & Cresswell, 448, Forbes v. Cochrane.

and to pursue its own course and business, without being disturbed, and without having violated the rights of others. As to narrow seas, and waters approaching the land, there have been many and sharp controversies among the European nations, concerning the claim for exclusive dominion. The questions arising on this claim are not very clearly defined and settled, and extravagant pretensions are occasionally put forward. The subject abounds in curious and interesting discussions, and, fortunately for the peace of mankind, they are, at the present day, matters rather of speculative curiosity than of use.

Grotius published his Mare Liberum, against the Portuguese claim to an exclusive trade to the Indies, through the South Atlantic and Indian Oceans, and he shows that the sea was not capable of private dominion. He vindicates the free navigation of the ocean, and the right of commerce between nations, and justly exposes the folly and absurdity of the Portuguese claim. Selden's Mare Clausum was intended to be an answer to the doctrine of Grotius, and he undertook to prove, by the laws, usages, and opinions of all nations, ancient and modern, that the sea was, in point of fact, capable of private dominion, and he poured a flood of learning over the subject. He fell far short of his great rival in the force and beauty of his argument, but he entirely surpassed him in the extent and variety of his citations and researches. Having established the fact that most nations had conceded that the sea was capable of private dominion, he showed, by numerous documents and records, that the English nation had always asserted and enjoyed a supremacy over the surrounding or narrow seas, and that this claim had been recognised by all the neighbouring nations. Sir Matthew Hale considered the title of the king to the narrow seas adjoining the coasts of England, to have been abundantly proved by the treatise of Selden, and Butler speaks of it

a The Marianna Flora, 11 Wheaton, 38,

« AnteriorContinuar »