writers upon the subject have said: that any nation feeling it desirable or necessary to interfere with or intervene in the affairs of another state must do so with a military and naval force sufficiently strong to make it clearly understood to the family of nations, as well as to the state concerned, that its voice must be attended to and its requests heeded.

There may be a previous stage of diplomatic intercourse consisting of advice and reproof alone; in this case it is important to consider the weighty words of Westlake, one of the most learned as well as one of the most able writers upon the subject. He says: "It only remains to observe that the tender of advice to a foreign government, even about the internal affairs of its state, is not intervention, and violates no right, though it is generally injudicious. Statesmen must remember that though governments and states are different, and it is to states that the rights given by international law belong, yet it is governments that they have to live with and whose susceptibilities they will, therefore, find it needful to consult."1

Still another word can be said as to the legal equality, so closely linked to the independence, of states before closing this discussion. "Russia and Geneva have equal rights," said Chief Justice Marshall in 1825. But it is hard to realize that Salvador and the United States are even legally upon an equality. In fact, it must be recognized as a material fact that states, like individuals, exercise power in proportion to their influence, strength, and riches.2

62. The Right of Self-Preservation.-A sovereign state having attained a recognition of its existence and independence with the concomitant of legal equality has naturally the right of preserving that existence; in other words, there is an underlying principle or right of self-preservation.

As a matter of fact, it is rarely that the preservation of the

1 Westlake's "Int. Law," I, pp. 307, 308.

2 Moore's "Digest," I, p. 63.

...

existence of a state demands the use of this right, which, as Hall says, suspends in general "the obligation to act in obedience to other principles." "There are, however," he goes on to say, "circumstances falling short of occasions upon which existence is immediately in question, in which, through a sort of extension of the idea of self-preservation to include self-protection against serious hurt, states are allowed to disregard certain of the ordinary rules of law in the same manner as if their existence were involved. This class of cases is not only susceptible of being brought under distinct rules, but evidently requires to be carefully defined, lest an undue range should be given to it."1

An instance which is generally quoted as a striking example of the use of this right of self-preservation occurred at the time of the Canadian rebellion of 1838.

"A body of insurgents collected to the number of several hundreds in American territory and, after obtaining small arms and twelve guns by force from American arsenals, seized an island at Niagara within the American frontier, from which shots were fired into Canada and where preparations were made to cross into British territory by means of a steamer called the Caroline. To prevent the crossing from being effected, the Caroline was boarded by an English force while at her moorings, within American waters, and was sent adrift down. the falls of Niagara. The cabinet of Washington complained of the violation of territory and called upon the British Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation. It will be for it to show also that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive, since the act, justified by the necessity of self-defence, must be limited by that necessity and kept clearly within it.' There was no 1 Hall, 6th ed., p. 264.

difficulty in satisfying the requirements of the United States, which though, perhaps, expressed in somewhat too emphatic language, were perfectly proper in essence. There was no choice of means, because there was no time for application to the American Government; it had already shown itself powerless, and a regiment of militia was actually looking on at the moment without attempting to check the measures of the insurgents. Invasion was imminent; there was, therefore, no time for deliberation. Finally, the action which was taken was confined to the minimum of violence necessary to deprive the invaders of their means of access to British territory. After an exchange of notes the matter was dropped by the government of the United States."1

Cases have occurred under the right of self-preservation which have been quoted also as matters of intervention. These are against states which are not for the time free agents and whose actions or resources may be commanded or are used against the state whose safety is threatened in a more or less degree. This action is not against persons of the state or on their territory, but against the state itself by invasion or by an attack upon its military resources or armed forces.

A case of this kind, which has been the source of much discussion and animadversion, is that of the capture of the Danish fleet at Copenhagen by Lord Nelson, in 1807, during the Napoleonic wars. The following description is given by Hall, an English author: "At that time the Danes were in possession of a considerable fleet and of vast quantities of material of naval construction and equipment; they had no army capable of sustaining an attack from the French forces then massed in the north of Germany; it was provided by secret articles in the treaty of Tilsit, of which the British Government was cognizant, that France should be at liberty to take possession of the Danish fleet and to use it against England; if possession had been taken, France 'would have been placed in a commanding

1 Hall, "Int. Law," 6th ed., pp. 265, 266.

position for the attack of the vulnerable parts of Ireland and for a descent upon the coasts of England and Scotland'; in opposition, no competent defensive force could have been assigned without weakening the Mediterranean, Atlantic, and Indian stations to a degree dangerous to the national possessions in those regions; the French forces were within easy striking distance, and the English Government had every reason to expect that the secret articles of the treaty of Tilsit would be acted upon. Orders were, in fact, issued for the entry of the corps of Bernadotte and Davoust into Denmark before Napoleon became aware of the despatch, or even of the intended despatch, of an English expedition. In these circumstances the British Government made a demand, the presentation of which was supported by a considerable naval and military force, that the Danish fleet should be delivered into the custody of England; but the means of defence against French invasion and a guarantee of the whole Danish possessions were at the same time offered, and it was explained that 'we ask deposit— we have not looked for capture; so far from it, the most solemn pledge has been offered to your government, and it is hereby renewed, that, if our demand be acceded to, every ship of the navy of Denmark shall, at the conclusion of a general peace, be restored to her in the same condition and state of equipment as when received under the protection of the British flag.' The emergency was one which gave good reason for the general line of conduct of the English Government. The specific demands of the latter were also kept within due limits. Unfortunately, Denmark, in the exercise of an indubitable right, chose to look upon its action as hostile and war ensued, the occurrence of which is a proper subject for extreme regret but offers no justification for the harsh judgments which have been frequently passed upon the measures which led to it."1

This matter has been, as just said, a matter of controversy, but at least one French historian like Lanfrey and an American writer upon the subject like Admiral Mahan uphold the

1 Hall, "Int. Law," pp. 268, 269.

conduct of England in the matter as a due exercise of the right of self-preservation.

The case of the Virginius has been put by some writers under the category of an exercise of the right of self-preservation. It is as follows:

"On October 31, 1873, the steamer Virginius, flying the American flag and having an American register, was captured by the Spanish man-of-war Tornado on the high seas. The Virginius was taken into Santiago de Cuba, where, after a trial by a court martial upon the charge of piracy, fifty-three of those on board, Americans, British, and Cubans, were condemned to death and shot. The rest were held as prisoners. The British man-of-war Niobe, arriving at Santiago on November 8, demanded that no further executions of British subjects should take place until after further investigation by higher authorities. This was done. The charge of piracy appears to have been based upon the fact that the vessel was engaged in the service of Cuban insurgents in conveying arms, ammunition, and men to aid the Cuban insurrection.

"After some correspondence by telegraph upon the matter, Secretary Fish and the Spanish minister agreed upon the following:

Spain stipulated to return forthwith the Virginius and the survivors of her passengers and crew, and on December 25 following to salute the flag of the United States unless before that date Spain should prove to the satisfaction of the United States that the Virginius was not entitled to carry the American flag, in which case the salute was not to be required but a disclaimer of intent of indignity to the flag was to be expected by the United States. If on or before December 25 it was made to appear to the satisfaction of the United States that the Virginius did not rightfully carry the American flag, the United States was to institute legal proceedings, after inquiry, against the Virginius and against any of the persons who may appear guilty of illegal acts.