our Federal Constitution. In proportion as civilization advanced "it became," says Sir James Mackintosh, "almost as essential that Europe should have a precise and comprehensive code of the law of nations as that each country should have a system of municipal law. a
Engaged in war, we must conform to the law of nations, so far as that law regulates public rights and duties during war. We must take from it, for example, the extent of our rights as regards enemies" property and the limitations of these rights.
In interpreting the international code, however, it behooves us to bear in mind that as its office is to foster civilization in peace and to mitigate suffering and repress outrage in war, the sentiment of christendom, taking practical form, has been gradually molding its rules from the more to the less severe. Thus, among the Romans the rule that renders enemies" property liable to confiscation was so harshly enforced that it was made to apply to subjects of the enemy who, at the breaking out of war, happened, innocently and by the accident of travel or temporary commerce, to be residing among them. But Grotius and Vattel argue that as these foreigners entered the country under the sanction of public faith, the government which permitted this tacitly contracted that they should be protected while there and allowed a reasonable time to return, taking with them their movable effects. And this practice, from its evident justice, has not superseded the stricter enforcement of the rule.
Beyond all doubt, as a nation holding itself second to no other in its desire to aid the cause of humanity and civilization, our practice in war ought to conform to the milder and more enlightened phase of sentiment sanctioned by modern publicists. But in so doing it behooves us to see to it that the scruples of moderation do not degenerate into weakness, defeating their own object and protracting the term of a war which is a disgrace to the age if it be not regaency for a great purpose. We are guilty of culpable negligence if we fail to employ all the means which are legally and properly within struggle which now desolated and depopulates our land. There is no just war has not for its object (on a rightful basis, it is true) the speedy restoration of peace. b
In pursuant that object as the legal phrase is, via facti-in other words, by the compulsory means of war-injury must be inflicted on the enemy. States, being in the nature of vast corporations, are not, indeed, liable to punishment, but acts resembling punishment, though in fact but measures of self- defense, become necessary, if we resort to war at all. "It is to be remembered," says an able modern commentator on internation law, " that as the will of the subject is bound up in that of his government, it may well be that the consequences of the conduct of his rulers may be attended with injury both to the person and property of the subject, and that the enemy is justified in striking through them at the government from which he has received a wrong, for which redress has been denied." c
The just limit in this case is set forth by Montesquieu: "Nations," says he, "owe to each other, in peace, the greatest amount of good, and
a Lecture on the Law of Nature and Nations, by Sir James Mackintosh.
b Bellum pacis causa suscipitur. (Grotti Proleg., 25 De Jure Belli et Pacis, lib. i, c. i, s. 1.)
c Commentaries on International Law, by Robert Phillimore, M. P., Vol.3, p.69.