respect to their personal status and personal duties. Again, as belligerents are not permitted to use force against each other within neutral territory, we cannot exercise there the same rights against the person and property of an enemy as we can within our own or enemy's territory, or upon the high seas. The treatment of an enemy, therefore, depends in a measure upon the place in which he may be found.'

neces

in a war

§ 4. It has already been remarked, that we have the same Allies not rights of war against the co-allies or associates of an enemy sarily as against the principal belligerent. It must, however, be associates observed that general allies are not necessarily associates in a war. The allies of our enemy, therefore, may, or may not, themselves become our enemies, according to the character of the alliance which they have formed with that enemy, the time of making it, and the circumstances under which it was entered into. We must, therefore, distinguish between the general allies of an enemy and his associates in a war.2

of the

hostilities

§ 5. But the question here arises, how are we to know If an ally whether an enemy's ally is himself to be regarded as an enemy enemy, and to be treated in the same manner as the principal engage in belligerent? In the first place, if he has made common cause with our enemy in beginning or carrying on hostilities against us, we have toward him the same belligerent rights as toward the principal in the war, for both are equally our enemies. There is no need of proving him an enemy, for his own conduct has made him such. Again, even where there are no obligations of treaty, if he freely and voluntarily declares in favour of his ally and against us, he, of his own accord, becomes our enemy, and is to be treated in every respect as the principal. But the simple fact of there being an alliance between our enemy and other nations would not justify us in treating such nations as belligerents.3

made

§ 6. Alliances, for warlike purposes, are divided into two warlike classes, offensive and defensive. In the former, the State unites alliance with its ally for the purpose of jointly waging war against a during a third party; but in the latter, the State engages to defend its war

' Burlamaqui, Droit de la Nat., &c., tome v. pt. iv. ch. vi. ; Bynkershoek, Quæst. Jur. Pub., lib. i. ch. viii.; Ragnenal, Droit de la Nat., &c., liv. iii. ch. v. § 4; Bello, Derecho Internacional, pt. ii. cap. ii. § 2.

2 Heffter, Droit International, §§ 115-7; Wheaton, Elem. Int. Law, pt. iii. ch. ii. §§ 13, 14.

3 Vattel, Droit des Gens, liv. iii. ch. vi. §§ 96-8.

Warlike

alliance made

before a war

ally in case of an attack.

Some

Some alliances are both offensive and defensive; others are only defensive; but there is seldom an offensive alliance which is not also a defensive one. are against all opponents, and without restriction; while others are only against a particular State, and on specified conditions, with limitations and exceptions. Warlike alliances, made at the commencement of, or during a war, are necessarily binding, for the contracting parties then know the character of the war and the exact nature of the obligations which they have assumed. Alliances, made under such circumstances, are acts of hostility which make the ally an enemy equally with the principal belligerent. It is important, however, to satisfy ourselves as to the character of such alliances, to see whether or not they are really warlike compacts which make the contracting parties also parties to the war. The alliance between France and the English revolted colonies in North America, being made during the war of the American revolution, was very properly regarded by Great Britain as tantamount to a declaration of war on the part of France, and as justifying immediate hostilities against this ally of the revolted colonies.1

§ 7. A warlike alliance made by a third party before the war with a State, then our friend, but now our enemy, will not, as a general rule, be, of itself, a sufficient cause for commencing hostilities against such third party; for there may be good reason why he should not regard himself as bound by the obligations of the alliance. It would certainly be very impolitic, as well as improper, for us to treat as a belligerent one who may not be disposed to become our enemy. The character of the alliance, and the peculiar circumstances of the case, must serve as guides for our conduct, always keeping in mind the maxim, that it is better to have a friend than an enemy, and the rule of international law, that we are justifiable in engaging in hostilities only so far as may be necessary for our own security and the protection of our just rights. In case of alliances, made before the war, the question is, to determine whether the actual circumstances are such as were contemplated in the engagement-whether they are such as were expressly specified, or tacitly supposed, in the treaty.

1 Riquelme, Derecho Púb. Int., lib. i. tit. i. cap. xi.; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. ix.; Phillimore, On Int. Law, vol. iii. § 73.

This is what the civilians call casus fœderis, or the case of the alliance. Whatever has been promised, either expressly or tacitly, in the treaty, is due in the casus fœderis. But if not so promised, it is not due. If the war is not such a case as the treaty contemplated, the ally does not become a party to it; for the casus fœderis does not take place. In 1826 the Princess Regent of Portugal required the assistance of Great Britain against Spain, by virtue of the tripartite treaty of 1703 between England, Portugal, and Holland; Mr. Canning argued in the House of Commons that it was necessary to show that a casus fœderis had arisen, although the existence of the treaty was not denied.

ofensive

§ 8. In an offensive alliance, made before the war, the ally An engages generally to co-operate in hostilities against a specified power, or against any power with whom the other party may declare war. Where an alliance is made in general terms, and one of the two parties to it declares war against its enemy, even though that enemy be the very nation against which the alliance was formed, the other ally is allowed time to examine into the causes of the war; if it be a just war, all his engagements come into force; but if it be unjustly declared, his treaty obligations cease to be binding.2

alliance

§ 9. So, also, in a defensive alliance made before the war, A the casus fœderis does not take place immediately on one of defensive the parties being attacked by an enemy. The other contracting party has the right, as indeed it is his duty, to ascertain if his ally has not given the enemy just cause of war, for no one is bound to undertake the defence of an ally, in order to enable him to insult others, or to refuse them justice. If he is manifestly in the wrong, his co-ally may require him to offer reasonable satisfaction; and if the enemy refuse to accept it, and insists upon a continuance of the war, the co-ally is then bound to assist in his defence. But without such offer of reasonable satisfaction, the war continues to be aggressive in character, and therefore unjust, and the ally may properly refuse to render the promised assistance, for the tacit condition on which such assistance was stipulated to be given has

1 Vattel, Droit des Gens, liv. iii. ch. vi. § 88; Wheaton, Elem. Int. Law, pt. iii. ch. ii. § 15; Martens, Précis du Droit des Gens, § 299; Moser, Versuch, &c., b. ix. pt. i. p. 24; Garden, De la Diplomatie, liv. vi. § 2, and liv. vii. § 1.

2 Bello, Derecho Internacional, pt. ii. ch. ix. 5 1.

Remarks

on

character

of such

alliances

not been observed, or, in other words, the casus fœderis has not taken place.

§ 10. If, on the contrary, a party to the defensive alliance, could call upon his ally to assist him whenever he was assailed, and effect and without regard to the justice of the war, or the circumstances of the attack, there would be no difference between a defensive and an offensive alliance, for many wars which are defensive in their operations are essentially offensive in their character and principles. Where attack is the best mode of providing for the defence of a State, the war is defensive in principle, though the operations are offensive. Where the war is unnecessary to safety, its offensive character is not altered, because the wrong-doer is reduced to defensive warfare. So, a State, against which a dangerous wrong is manifestly meditated, may prevent it by striking the first blow, without thereby waging a war in its principle offensive. Accordingly, it is not every attack made on a State that will entitle it to aid under a defensive alliance; for if that State had given just cause of war to the invader, the war would not be, on its part, defensive in principle.1

Obligation of an alliance deter

§ 11. Admitting the principle that every treaty of alliance contains the tacit clause that it shall not be binding, except in case of a just war, and that the co-ally has a right to decide mined by for himself upon the character of the war, and whether or not justness of the war the casus fœderis has taken place, it is only in case the war is clearly and obviously unjust that he can claim a release from the obligations which he voluntarily contracted. Whether the alliance be offensive or defensive, or both, unless the ally upon examination find the war manifestly unjust, he must comply with his engagements; and in the absence of any proof to the contrary, he is bound to consider that his co-ally has just cause of war. In speaking of the tacit restriction, which is necessarily understood in every treaty of alliance, Wheaton remarks that it can be applied only to a manifest case of unjust aggression on the part of the other contracting party, and cannot be used as a pretext to elude the performance of a positive and unequivocal engagement, without justly exposing the ally to the imputation of bad faith. In doubtful

1 Wildman, Int. Law, vol. ii. p. 166; Grotius, De Jure Bell. ac Pac., lib. ii. cap. xv. § 13; Garden, De la Diplomatie, liv. vi. sec. ii. § 2; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. iii.

cases, the presumption ought rather to be in favour of our confederate, and of the justice of his quarrel.'1

tion

liaries and

§ 12. In a treaty of succour, the ally stipulates to furnish Distinccertain assistance in troops, ships of war, provisions, or money. between If the succour is to consist of troops, they are called auxiliaries; auxiif of money, it is called subsidy. The rules already laid down, subsidy with respect to the casus fœderis in treaties of alliance made before the war, apply equally to treaties of limited succour and subsidy. Such treaties are not binding where the war is manifestly unjust.

§ 13. Vattel says that if the State which has promised Treaty of guarantee succour finds itself unable to furnish it, this inability alone is sufficient to dispense with the obligation. If, for example, one of the allies is engaged in another war, not contemplated by the alliance, and which requires his whole strength, he is absolved from sending assistance to his ally in the war to which he is not yet a party. Again, if he has promised provisions, and his own subjects are suffering from famine, the casus fœderis does not take effect; for he is not obliged to give another what is absolutely necessary for the use of his own people. It seems to us that a promise is none the less binding because of the inability of the promiser to fulfil his engagements.

of Swit

§ 14. It is also proper to remark that even where the casus Example fœderis is admitted to take place, and the stipulated succours zerland are furnished, the ally who furnishes them is not necessarily made a party to the war. Where one State stipulates to furnish to another a limited succour of troops, ships of war, money, or provisions, without any promise looking to an eventual engagement in general hostilities, such a treaty does not necessarily render the party furnishing this limited succour the enemy of the opposite belligerent. It only becomes such, so far as respects the auxiliary forces thus supplied; in all other respects it remains neutral. Such, for example, formerly were the accustomed relations of the confederated cantons of Switzerland with the other European powers.3 A

1 Wheaton, Elem. Int. Law, pt. iii. ch. ii. § 15; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. ix.

2 Vattel, Droit des Gens, liv. iii. ch. vi. §§ 81, 92; De Félice, Droit de la Nat. et des Gens, tome ii. lec. 28.

3 Vattel, liv, iii. ch. vi. §§ 79, 82; Riquelme, Derecho Púb. Int., lib. i. tit. i. cap. xii.; Bello, Derecho Internacional, pt. ii. cap. ix. § 1.