« PreviousContinue »
gifted Prescott, in his history of the conquest of Mexico, records his solemn condemnation of war and its inevitable atrocities. While he disapproves of the Spanish massacre at Cholula under Cortez, he declares it less atrocious than the cruelties practiced upon the descendants of these Spaniards at Badajoz by the British, and at Taragona and other places by the French in the Peninsular war, as women were protected from insult at Cholula, while in the other cases rape, rapine and butchery were perpetrated ad libitum by an infuriated sol. diery. These things, this able writer considers " the inevitable evils of war," and he enjoins upon the Rulers of Nations, " to submit to every sacrafice, save that of honor, before authorizing an appeal to arms." He justly applauds “peaceful Congresses, and impartial mediation,” to avoid war and its horrors, as the highest evidence of the advancing civilization of our day. If peace is a duty it is incumbent on a nation to do all things necessary to preserve it. Hence all national duties should be strictly performed by every nation in all international transactions. As this duty attaches to the means as well as the end, all nations are bound to do those things that tend to peace. In some American treaties it is stipulated that in case of supposed wrong or injury of one state to the other, the party deeming itself injured should
not resort to war, but should present to the other party a statement of the claim and the evidence on which it is founded. Such is now deemed the duty of all nations. (Vattel b. 2d. ch. 18, s. 327.) This is a universal rule enjoined by the moral law of nations. The next peaceful step is to negotiate candidly and kindly, and settle the difficulty if possible,
With a view to preserve peace, all Christian nations have agreed that ambassadors and their servants shall enjoy an entire immunity from local law, and be subject only to the laws of their own country. But one nation is not obliged to permit any enforcement of foreign law on foreign ministers within its territory. So Washington decided in the case of Genet. The only ordinary remedy in case of misconduct of a foreign minister is to request his recall, and to refuse intercourse with him. This was the course of our government, under President Washington, in the case of the French minister Genet. In extreme cases a foreign envoy may be ordered to leave the country, or he may be restrained of his liberty if his violence can not be otherwise restrained. fusal to receive or negotiate with foreign miifisters, giving no just cause of offence, as was done by the French Directory in reference to our ministers
But a re
seeking redress for wrongs done to our republic, is hostile, and a violation of the duty to live peacebly with all men. (Vattel b. 4th, ch.5th, s. 55, 6 and 7.) Negotiation by ministers ought to be persevered in as long as any reasonable hope of accommodation exists. (Vattel b. 2d, ch. 18, s. 327.) On the same principle they ought to be renewed, when practicable with a view to peace. The law of our Republic provides for the immunity, of foreign ministers, their servants and effects, and and for foreign consuls a hearing before the national tribunals. (See the act of Congress of 1790, the United States v. Ortega, 11 Wheaton, 468, 469 n. Davis v. Packard, 7, Peters, R. 276.) Our Constitution, acts of Congress and judicial decisions, according to the learned Wheaton, ordain: 1. That no civil or criminal proceeding can be instituted in any state court against a foreign ambassador, other public minister, or consul. 2. That such ambassador, public minister or consul may commence a suit in a state court (if of competent jurisdiction in other respects) against an individual. 3. That no civil suit can be commenced in any court against an ambassador or other public minister, by compulsory process, in any court whatever. 4. That consuls may be sued civilly or criminally in the courts of the Union. like individuals. 5. That the district courts, with
in their respective limits, have jurisdiction of suits and prosecution against consuls.
· Mediation of friendly states to settle national difficulties, is a duty as much as it is to compose disputes among individuals and neighborhoods. The differing states are bound to admit mediation as a natural and efficient means of peaceable arrangement.
SECTION TWENTY-FIFTH. OF NATIONAL ARBITRAMENT.
Arbitrament or reference of national controversies to an indifferent umpire is an obvious duty. (Vattel b. 2d, ch. 18, s. 329.) It is the great, the powerful means of preserving peace. Formerly in ages of darkness and delusion, force, trial by battle was allowed as a judicial proceeding in courts. Christianity and civilization have substituted reason for force, the decision of judicial conscience for the scimetar. Why should not the same principle be applied to the affairs of nations ? No reason can be assigned why national disputes as well as law suits should not be referred to indifferent judges to decide by the eternal principles of right and justice. This doctrine has received the sanction of mankind in all ages. Prior to the Pelloponnesian war the Athenians offered Sparta and her allies to refer their differences to national arbitrament, and the refusal of this pacific offer led the states of Greece to ruin. In modern times arbitraments are becoming common. Great Britain and the United States referred to the King of the Netherlands the settlement of the North Eas. tern boundary of the United States, and though the award was not executed owing to its departure from the question submitted, it greatly promoted the final settlement of this exciting subject by the treaty of Washington of 1842. Our President's instruction, given through Mr. Clay, Secretary of State, to our ministers to Panama, urged this important duty of national arbitrament. It is the policy of our republic, and all nations admit that it is right. One class of cases must of necessity be excepted from reference, all those pertaining to and forming an essential part of a nation's sovereignty cannot be submitted, as a loss of a nation's independence is national death during its continuance. Hence no nation ought to submit a question of a right of searching her vessels at sea for enemy's goods or British seamen, or a question of her common and equal right to the freedom of the