Capitu'a mer cenaries treaty expires if one of the contracting parties should lose its existence, as was the case in the dissolution of Poland in 1795. § 15. A distinction, however, must be made between simple tions for treaties of succour and subsidy, and capitulations for mercenaries, like those formerly entered into by the Swiss. Auxiliary troops are usually under the general control and direction of the power which furnishes them, and which is, therefore, in a measure, responsible for their acts. But mercenaries, furnished under capitulations, usually engage in a foreign service for a stated period, and for stipulated pay and allowances, being entirely at the disposition of the power which employs them, that which furnishes them having no part in the conquests which are made, or in the negotiations and treaties which are entered into.2 Limited rendered to an enemy § 16. Is a limited assistance rendered to the enemy, under assistance the obligations of a subsidy-treaty, a just cause of war? If the ally of our enemy goes no further than to furnish the stipulated succour, and, in other respects, preserves toward us the accustomed relations of friendship and neutrality, we may overlook this cause of complaint. This prudent caution of avoiding an open rupture with those who render to our 1 In 1859, the Federal Government passed a law-(1) forbidding any Swiss citizen to enrol himself, as soldier to a foreign State, without the permission of the Government of his Canton, (2) enacting severe penalties against whosoever might seek to recruit, (3) forbidding any Swiss citizen to take service in a foreign country, in a corps, not making part of the national army, of that State for which he was enrolled, (4) forbidding any Swiss citizen to engage himself to form a corps composed in whole, or in part, of Swiss citizens, for any State; and, on the other hand, prohibiting foreigners to enrol Swiss citizens, or to assist therein. The Neapolitan Government had some regiments, composed entirely of Swiss soldiers, by virtue of a capitulation, which ended June 15, 1859. In that year a mutiny broke out among these troops; 300 were shot down by the Neapolitan soldiers, and the remainder were sent back to Switzerland. This occurrence, together with some questions which arose the same year, concerning the employment of Swiss soldiers in foreign States, and especially in Italy, was the immediate cause of the passing of the above-mentioned law. Swiss troops were, and still are, in the Papal service, but without any capitulation; they were also in France in the days of the Bourbons. Moors and Heyducks were employed in many of the former German courts. The Greek emperors had Varangians. The Sultans of Morocco still depend on negroes or 'blackguards.' 2 Martens, Précis du Droit des Gens, §§ 301–3; Galiani, Dei Doveri dei Prin., &c., lib. i. cap. v. p. 145; Moser, Versuch, &c., b. x. pt. i. pp. 139, 140; Romainmatier, Histoire Militaire des Suisses, passim ; Garden, De la Diplomatie, liv. vi. sec. ii. § 2. enemy certain limited assistance, previously stipulated for, has gradually introduced the custom of not regarding it as an act of hostility, especially where it is of a limited character. But, if prudence dissuades us from making use of a right, it does not thereby destroy the right itself. A cautious belligerent may choose to overlook certain offences, rather than unnecessarily increase the number of its enemies, and be influenced by considerations of expediency, in not enforcing the strict rights of war. It is, therefore, a question of policy, whether the assistance furnished an enemy shall be regarded as good and sufficient cause for declaring war against the ally who furnishes it.' teed § 17. We have described, in chapter viii., the general Defence character of treaties of guarantee and surety, as distinguished of the thing from ordinary treaties of alliance. The question to be con- guaran. sidered here is, how far such treaties bind the party making the guarantee to assist the other party in a war for the defence or the security of the thing guaranteed? For example, Great Britain, by the treaties of 1642, 1654, 1661, 1703, 1807, 1810, and 1815, with Portugal, guaranteed the latter kingdom to the lawful heir of the house of Braganza, and agreed to defend it against every hostile attack.' In the case of a war between Portugal and a third power, in which the former was subjected to a hostile attack,' was Great Britain bound to join in the war, without regard to its justice or injustice? Some publicists have laid down the general rule, that where one of the allies has guaranteed to the other certain specified rights or possessions, which are taken away or seized by a third power, this third power places itself in a position of hostility towards both of the contracting parties. In this case, it is said, the guaranteeing party cannot refuse to succour his ally. Here his duty is plain and indisputable, and if he should refuse to take part in the war, he is justly chargeable with a breach of the alliance. The casus fœderis takes place, it is said, as soon as the rights or possessions so guaranteed are seized or encroached upon. The agreement, being for the security of a specific right, or the possession of a particular territory, it is special, and the covenant cannot be evaded or avoided by any general plea of the injustice of the war. 1 Vattel, Droit des Gens, liv. iii. ch. vi. §§ 79-82; Heffter, Droit International, §§ 115–7. Alliance for war with re of allies Others say that treaties of guarantee are of the nature of a defensive alliance; and, consequently, that even where territories are guaranteed, the guarantee does not extend to wars provoked by the aggression of the party guaranteed. If, therefore, the war be manifestly unjust on the part of the ally so guaranteed, the casus fœderis does not take place, and the stipulation is not binding. This view is consonant with general principles; for if the war be morally wrong on the part of one ally, he cannot reasonably demand the auxiliary strength of his co-ally to assist him in its prosecution. Again, in the case of the guarantee of a treaty, it is said that the guarantee is not only not obliged, but is not even authorised to interfere to compel its performance, unless required to do so by a party guaranteed, because the contracting parties are at liberty to vary its stipulations, or dispense altogether with their performance. It follows, therefore, that a party to a treaty of guarantee is not necessarily a party to a war undertaken by his co-ally, even though it be in defence of the thing guaranteed.1 § 18. Conflicts not unfrequently occur in warlike alliances. In the case of an alliance for war, made towards and against servation all, with the reservation of allies, this exception is to be understood to include present allies only, and not to extend to any subsequent treaty stipulations with other powers. Vattel supposes this case: 'Three powers have entered into a treaty of defensive alliance; two of them quarrel and make war on each other; what shall the third do? The treaty does not bind it to assist either the one or the other. For it would be absurd to say that it has promised assistance to each against the other, or to one of the two to the prejudice of the other. All that is incumbent on it is to employ its good offices for reconciling its allies; and if such mediation fail, it remains free to assist the one which shall appear to have justice on its side.' The latter part of this quotation should, perhaps, be adopted only with certain restrictions. If the alliances are such as to leave the third party in the position of a neutral, and exempt him from all obligations to assist either party, he cannot be considered at liberty to assist the one whose cause he may deem just. This fact alone would not constitute a justifiable cause of war. Moreover, as a 1 Bello, Derecho Internacional, pt. ii. cap. ix. § I. neutral he is bound to treat both the belligerents as having justice on their side. What Vattel probably means to say is, that the third party is at liberty, so far as his alliances are concerned, to side with the belligerent whose cause he deems just.' associates § 19. A warlike association is where the alliance is of such Warlike an intimate and perfect character as to form a union of interests; where each of the parties is bound to act with his whole force, and all are alike principals in the war at its commencement, or become so during its progress. Every associate of my enemy is indeed himself my enemy; it matters little whether anyone makes war on me directly, and in his own name, or under the auspices of another; the same rights which war gives me against my principal enemy, it also gives me against all his associates. This results directly from my right of security and of self-defence, for I am equally attacked by the one and the other. But the question is, to know who are lawfully to be accounted my enemy's associates, united against me in a war.2 § 20. Vattel discusses at some length the question, who Vattel's are, and who are not to be regarded as such associates in the opinion war, and makes the following distinctions. He regards as associates, first, those who make common cause with the enemy, although not appearing as principals; second, those who assist the enemy without being bound to do so by any treaty; third, those who, under the obligations of an offensive alliance, assist the principal in carrying on the war; fourth, those who make defensive alliance with the enemy after the commencement of the war, or on the certain prospect of its declaration, or with special reference to the defence of the enemy against the actual opposing belligerent; and fifth, those who have formed with the enemy, even before hostilities have commenced, a real league or society of war. All such are associates in the war. But if the defensive alliance is general in its character, leaving it doubtful when the casus fœderis will take place, or if it has not been made 1 Bynkershoek, Quæst. Jur. Pub., lib. i. cap. ix.; De Félice, Droit de la Nat. et des Gens, tome ii. lec. xxviii.; Vattel, Droit des Gens, lib. iii. ch. vi. p. 93. 2 Wolfius, Jus Gentium, §§ 730-6; Martens, Précis du Droit des Gens, § 300; Garden, De la Diplomatie, liv. vi. sec. ii. § 3; Riquelme, Derecho Púb. Int., lib. i. tit. i. cap. xii. No declaration necessary enemy's associates particularly against me, nor concluded at a time when I was openly preparing for war or had already begun it, or if the allies have only stipulated in it, that each of them shall furnish a stated succour to him who shall be first attacked, such allies are not necessarily associates in the war. If auxiliaries are furnished to my enemy, they are enemies, but the nation that furnishes them are not such of necessity. By attacking such nations for that reason, says Vattel, 'I should increase the number of my enemies, and instead of a slender succour which they furnished against me, should draw on myself the united force of those nations.'' § 21. As a general rule, it is not necessary to make a declaration of war against the associates of the enemy before against treating them as belligerents. The nature of their obligations, or the character of their acts, makes them public enemies, and puts them in the same position towards us as if they were principals in the war. Our belligerent rights against them commence, in some cases, with the war, and in others, with their first act of hostility against us.2 The existence of the alliance, with the acknowledgment of its obligation, and a preparation for carrying on the war, would make them public enemies, even before they actually take part in the military operations, as was the case between France and Great Britain in 1778.3 enemy's allies as friends Policy of § 22. But, in modern times, there are very few alliances treating between States which so bind them together as necessarily to make them associates in a war; it is, therefore, in general, a matter of prudence to seek to disarm the enemy's allies by treating them as friends. It is a cheap and honourable means of weakening an opponent's power, and may save the effusion of much innocent blood. The contrary course is not only impolitic on our part, but tends to prolong the war by making it more general, and by involving new elements of discord, and more complicated and conflicting interests. Neutrality may be absolute or qualified; absolute when the neutral is bound to neither belligerent by a treaty which may affect the other, and qualified, when the execution of a treaty 1 Vattel, Droit des Gens, liv. iii. ch. vi. § 96; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. ix.; Bello, Derecho Internacional, pt. ii. ch. ix. § 1. 2 See Ann. Reg., 1779, p. 58 et seq. 3 Wheaton, Elem. Int. Law, pt. iii. ch. ii. § 15; Phillimore, On Int. Law, vol. iii. § 60; Heffter, Droit International, $ 120. |