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at the foundation of all the rest, is the right of self-preservation. It is not only a right with respect to other States, but a duty with respect to its own members, and the most solemn and important which the State owes to them. This right necessarily involves all other incidental rights, which are essential as means to give effect to the principal end.
modified by the equal rights of other States,
Among these is the right of self-defence. This again self-defence involves the right to require the military service of all its people, to levy troops and maintain a naval force, to build fortifications, and to impose and collect taxes for or by treaty. all these purposes. It is evident that the exercise of these absolute sovereign rights can be controlled only by the equal correspondent rights of other States, or by special compacts freely entered into with others, to modify the exercise of these rights.
In the exercise of these means of defence, no independent State can be restricted by any foreign power. But another nation may, by virtue of its own right of self-preservation, if it sees in these preparations an occasion for alarm, or if it anticipates any possible danger of aggression, demand explanations; and good faith, as well as sound policy, requires that these inquiries, when they are reasonable and made with good intentions, should be satisfactorily answered.
Thus, the absolute right to erect fortifications within the territory of the State has sometimes been modified by treaties, where the erection of such fortifications has been deemed to threaten the safety of other communities, or where such a concession has been extorted in the pride of victory, by a power strong enough to dictate the conditions of peace to its enemy. Thus, by the Treaty of Utrecht, between Great Britain and France, confirmed by that of Aix-la-Chapelle, in 1748, and of Paris, in 1763, the French government engaged to demolish the fortifications of Dunkirk. This stipulation, so humiliating to France, was effaced in the treaty of peace concluded between the two countries, in 1783, after the war of the American Revolution. By the treaty signed at Paris, in 1815, between the Allied Powers and France, it was stipulated that the fortifications of Huningen, within the French territory, which had been constantly a subject of uneasiness to the city of Basle, in the Helvetic Confederation, should be demolished, and should never be renewed or replaced
by other fortifications, at a distance of less than three leagues from the city of Basle.1
The right of every independent State to increase its national dominions, wealth, population, and power, by of intervenall innocent and lawful means; such as the pacific ference. acquisition of new territory, the discovery and settlement of new countries, the extension of its navigation and fisheries, the improvement of its revenues, arts, agriculture, and commerce, the increase of its military and naval force; is an incontrovertible right of sovereignty, generally recognized by the usage and opinion of nations. It can be limited in its exercise only by the equal correspondent rights of other States, growing out of the same primeval right of self-preservation. Where the exercise of this right, by any of these means, directly affects the security of others, as where it immediately interferes with the actual exercise of the sovereign rights of other States, — there is no difficulty in assigning its precise limits. But where it merely involves a supposed contingent danger to the safety of others, arising out of the undue aggrandizement of a particular State, or the disturbance of what has been called the balance of power, questions of the greatest difficulty arise, which belong rather to the science of politics than of public law.
The occasions on which the right of forcible interference has been exercised, in order to prevent the undue aggrandizement of a particular State, by such innocent and lawful means as those above mentioned, are comparatively few, and cannot be justified in any case, except in that where an excessive augmentation of its military and naval forces may give just ground of alarm to its neighbors. The internal development of the resources of a country, or its acquisition of colonies and dependencies at a distance from Europe, has never been considered a just motive for such interference. It seems to be felt, with respect to the latter, that distant colonies and dependencies generally weaken, and always render more vulnerable the metropolitan State. And with respect to the former, although the wealth and population of a country is the most effectual means by which its power can be augmented,
1 Martens, Recueil de Traités, tom. ii. p. 469.
such an augmentation is too gradual to excite alarm. To which it must be added that the injustice and mischief of admitting that nations have a right to use force, for the express purpose of retarding the civilization and diminishing the prosperity of their inoffensive neighbors, are too revolting to allow such a right to to be inserted in the international code. Interferences, therefore, to preserve the balance of power, have been generally confined to prevent a sovereign, already powerful, from incorporating conquered provinces into his territory, or increasing his dominions by marriage or inheritance, or exercising a dictatorial influence over the councils and conduct of other independent States.1 (a)
Senior, Edinb. Rev. No. 156, art. 1, p. 329.
(a) [The fitting out of expeditions against Cuba, in 1851, from the United States, though in violation of their laws, led to an intervention on the part both of England and France, so far as sending orders to their naval commanders to prevent, by force, the landing of adventurers from any nation on the island of Cuba, with hostile intent. Both powers deemed it incumbent on them to make known these instructions to the government of the United States.
In reply to an oral communication made, on the 27th September, 1851, by the British Chargé d'Affaires to the acting Secretary of State, it was stated, that “The President is of opinion, that so far as relates to this republic and its citizens, such an interference as would result from the execution of those orders, if admitted to be rightful in themselves, would nevertheless be practically injurious in its consequences, and do more harm than good. Their execution would be the exercise of a sort of police over the seas in our immediate vicinity, covered as they are with our ships and our citizens; and it would involve, moreover, to some extent, the exercise of a jurisdiction to determine what expeditions were of the character denounced, and who were the guilty adventurers engaged in them.”
In a note of 22d October, 1851, to M. de Sartiges, Mr. Crittenden adverts to the fact, that the proposed orders could not be carried into effect without a visitation, examination, and consequent detention of our vessels on our shores, and in the great channels of our coasting trade, and which must invest British and French citizens with the jurisdiction of determining in the first instance, at least, what are the expeditions denounced in their orders, and who are the guilty persons engaged in them, an exercise of power and jurisdiction that could hardly fail to lead to abuses and collisions perilous to the peace that now happily prevails. He adds: "There is another point of view, in which this intervention, on the part of France and England, cannot be viewed with indifference by the President. The geographical position of the island of Cuba, in the Gulf of Mexico, lying at no great distance from the mouth of the river Mississippi, and in the line of the greatest current of the commerce of the United States, would become, in the hands of any powerful European nation, an object of just jealousy and apprehension to the people of this country. A due regard to their own safety and interest must, therefore, make it a matter
Each member of the great society of nations being entirely independent of every other, and living in what has been called a
of importance to them who shall possess and hold dominion over that island. The government of France and those of other European States were long since officially apprised by this government, that the United States could not see, without concern, that island transferred by Spain to any other European State. President Fillmore fully concurs in that sentiment, and is apprehensive that the sort of protectorate introduced by the order in question might, in contingencies not difficult to be imagined, lead to results equally objectionable."
To this, it was answered, on 27th October, 1851: "M. de Sartiges had endeavored to establish, in a distinct manner, the two following points: - First, that the instructions issued by the government of the (French) Republic were spontaneous and isolated; secondly, that those instructions were exclusive, for an exclusive case, and applicable only to the class, and not to the nationality of any pirate or adventurer that should attempt to land, in arms, on the shores of a friendly power. He had added that the existing laws in regard to the right of search-laws about which the susceptibilities of the French government are as forcibly roused as those of the government of the United States were neither directly nor indirectly affected by the order to repel violence by force, since the instructions which have been issued to the commanding officer of the French station were only intended to apply to a case of piracy, the article of the maritime code in force concerning pirates." It was further said, "Those general considerations do not prevent [M. de Sartiges] from acknowledging that the interest which a country feels for another is naturally increased by reason of proximity; and his government, which understands the complicated nature as well as the importance of the relations existing between the United States and Cuba, has seriously considered the declaration formerly made by the government of the United States, and which has been renewed on this occasion, that that government could not see, with indifference, the island of Cuba pass from the hands of Spain into those of another European State.' The French government is likewise of opinion that, in case it should comport with the interests of Spain, at some future day, to part with Cuba, the possession of that island, or the protectorship of the same, ought not to fall upon any of the great maritime powers of the world." This correspondence was closed with a note of Mr. Webster, dated November 18, 1851, in which he says: "Inasmuch as M. de Sartiges now avers that the French government had only in view the execution of the provision of its maritime code against pirates, further discussion of the subject would seem to be for the present unnecessary." Cong. Doc. 32 Cong. 1 Sess. Senate, Ex. Doc. 1, p. 74-82.
But, on 23d April, 1852, separate notes, though of the same tenor, inclosing copies of a despatch from their respective ministers of foreign affairs, (M. de Turgot and the Earl of Malmesbury,) and of the draft of a tripartite convention were addressed by the Ministers of France and England to the Secretary of State. The only substantive article of the convention was: "The high contracting parties hereby severally and collectively disclaim, both now and for hereafter, all intention to obtain possession of the island of Cuba; and they respectively bind themselves to discountenance all attempt to that effect on the part of any power or individuals
state of nature in respect to others, acknowledging no common sovereign, arbiter, or judge; the law which prevails between
whatever." The accompanying communications contained disclaimers, by England and France, of any such intention by either of those powers, and referring to the previous course of the United States, it is assumed, that "all three parties appear to be fully agreed to repudiate, each for itself, all thought of appropriating Cuba, and that it would therefore seem as if all that remained to be done were to give practical effect to the views entertained in common by the three powers." This it was proposed to do, either by the above convention or by the interchange of formal notes to the same effect.
In acknowledging these notes, on 29th April, 1852, Mr. Webster says, “It has been stated, and often repeated to the government of Spain by this government, under various administrations, not only that the United States have no design upon Cuba themselves, but that, if Spain should refrain from a voluntary cession of the island to any European power, she might rely on the countenance and friendship of the United States to assist her in the defence and preservation of that island. At the same time, it has always been declared to Spain that the government of the United States could not be expected to acquiesce in the cession of Cuba to any European power. . . The present Executive of the United States entirely approves of this past policy of the government, and fully concurs in the general sentiments expressed by M. de Turgot, and understood to be identical with those entertained by the government of Great Britain." He deemed it his duty, at the same time, to remind the ministers, and through them their governments, that "the policy of the government of the United States has uniformly been to avoid, as far as possible, alliances or agreements with other States, and to keep itself free from international obligations, except such as affect directly the interests of the United States themselves." He assured each of them that the President would take his communication into consideration, and give it his best reflections.
The French and English ministers, on 8th of July, 1852, again refer to the proposed convention. In their respective notes, which, like the former papers, only differ in being written by each in his own language, they place the right of intervention of their governments, as well on their general commercial interests as on the special interests, which their subjects, and the government of France, on their own account, have in the question as creditors of Spain. "There is," they say, "at the present time, an evident tendency in the maritime commerce of the world to avail itself of the shorter passages from one ocean to another offered by the different routes existing or in contemplation across the isthmus of Central America. The island of Cuba, of considerable importance in itself, is so placed, geographically, that the nation which may possess it, if the naval forces of that nation should be considerable, might either protect or obstruct the commercial routes from one ocean to the other. Now, if the maritime powers are, on the one hand, out of respect to the rights of Spain and from a sense of their international duty, bound to dismiss all intention of obtaining possession of Cuba, so, on the other hand, are they obliged, out of consideration for the interests of their own subjects or citizens, and the protec