Countervailing duty

“ There was not an officer of the law in sight. If one were present it would be his manifest duty to apprehend the outlaws as soon as they appeared, and the plan was to allow them to fight out their quarrel and perhaps kill each other. ”

“ The men were under tolerable command, and no symptoms of insubordination were known to have shewn themselves; they seemed to be aware of the consequences that would [128] ensue to their cause if order and submission were not rigidly exacted, and they were therefore taught to obey their officers as a duty indispensable for their security. ”

“ The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result. ”

“ And as conduct has to be made up of parts thus at variance with one another, the theory of conduct remains confused.
There co-exists a kindred irreconcilability between161 the sentiments answering to the forms of co-operation required for militancy and industrialism respectively. While social antagonisms are habitual, and while, for efficient action against other societies, there needs great subordination to men who command, the virtue of loyalty and the duty of implicit obedience have to be insisted on; disregard of the ruler's will is punished with death. ”

“ And, with respect to such injuries, we should ever act upon that ancient maxim of prudence; obsta principiis. The first unjust demands of an encroaching power should be firmly withstood, when there appears a disposition to repeat and increase such demands. And oftentimes it may be both the right and duty of a people to engage in war, rather than give up to the demands of such power, what they could, without any inconveniency, spare in the way of charity. ”

“ It is generally recognised that the duty of impartiality incumbent upon a neutral obliges him to prevent his men-of-war and other public vessels from rendering transport services to either belligerent. ”

“ The first duty of the sovereign, that of protecting the society from the violence and invasion of other independent societies, can be performed only by means of a military force. ”

“ Such a conscription, with the state of public opinion that would have required it, and the many moral fruits it would bear, would preserve in the midst of a pacific civilization the manly virtues which the military party is so afraid of seeing disappear in peace. We should get toughness without callousness, authority with as little criminal cruelty as possible, and painful work done cheerily because the duty is temporary, and threatens not, as now, to degrade the whole remainder of one's life. I spoke of the "moral equivalent" of war. ”

“ We most earnestly hope and believe that the chance of our having any hostile military complication with any foreign power is very small. But that there will come a strain, a jar, here and there, from commercial and agricultural—that is, from industrial—competition, is almost inevitable. Here again{239} we must remember that our first duty is to our own people, and yet that we can best get justice by doing justice. ”

“ 48 The duty of holding a neutral conduct may be inferred, without any thing more, from the obligation which justice and humanity impose on every nation, in cases in which it is free to act, to maintain inviolate the relations of peace and amity towards other nations. ”

“ Distrust of authority should be the first civic duty, even as the first military duty is said to be the reverse of it. ”

“ It is our duty still to endeavor to avoid war; but if it shall actually take place, no matter by whom brought on, we must defend ourselves. If our house be on fire, without inquiring whether it was fired from within or without, we must try to extinguish it. ”

“ Upon a military commander administering martial law in a hostile country there lies a grave responsibility; when he is compelled to exercise this responsibility over a population which owes allegiance and looks for protection to the Government which he himself is serving, this burden is immeasurably enhanced. ”

“ Again, if the command, "Thou shalt not kill," is to be taken literally, it not only prohibits us from engaging in just war, and forbids the taking of human life by the state, as a punishment for crime ”

“ Why therefore do you delay to deliver up yourselves to a superior force, who can take you without your consent? although it will be safer for you to deliver yourselves up voluntarily, while a forcible capture, when you are beaten, must appear more dangerous, and will bring further calamities upon you. ”

“ A neutral Government is bound—first, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace ”

“ Self-imposed restrictions, almost imperceptible, and hardly worth mentioning, termed usages of International Law, accompany it without essentially impairing its power.
"Violence, that is to say physical force, is therefore the Means; the compulsory submission of the enemy to our will is the ultimate object. ”

“ Admonished by the past, we can not, in justice, disregard our national enemies. Vigilance will apprise us of their approach, a disciplined and valiant army will insure their discomfiture. Without discrimination and system, how unavailing would all the resources of an old and overflowing treasury prove to us. ”

“ That the government of a fighting body is thus characterized needs no showing. Indeed, commands of the positive kind given to the soldier are more important than those of the negative kind: fighting is done under the one, while order is maintained under the other. But here it chiefly concerns us to note that not only the control of military life, but also the control of civil life, is, under the militant type of government, thus characterized. There are two ways in which the ruling power may deal with the private individual. ”

“ While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander in chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance. ”

“ It is evident, then, Sir, that the whole military power of the State is to be employed, if necessary, in dispossessing the custom-house officers, and in seizing and holding the goods, without paying the duties. ”

“ The obligations arising from the rights of humanity and claims of rank are universally binding and extensive, except in case of retaliation. These, I should have hoped, would have dictated a more tender treatment of those individuals whom chance or war had put in your power. ”

“ I deny that a belligerent nation has been conceded ‘the right of visit and search, and the right of capture and condemnation’ of neutral ships engaged in unneutral service or carrying contraband for the enemy. ”

“ While, therefore, you will permit no interference by the persons under your command, with the relations of Persons held to Service under the laws of any State, you will, on the other hand, so long as any State, within which your Military operations are conducted, is under the control of such armed combinations, refrain from surrendering to alleged masters any Person who may come within your lines. ”

“ Those who wield the power of the State must exercise the rights and fulfil the duties accorded to and imposed upon them for the purpose of securing the object of the war, without regard to the distance from the actual scene of warfare of the obstacles which require removal. ”

“ Your numbers will be sufficient to secure you against the unauthorized opposition of individuals, or of small parties; but if a superior force, authorized, or not authorized, by a nation, should be arrayed against your further passage, and inflexibly determined to arrest it, you must decline its further pursuit and return. ”

“ In all these cases the authority vested in the officer to suppress a mutiny, or to overtake and capture an escaped vessel, or to protect the subtreasury from threatened pillage, carries with it power to do all things necessary to accomplish the object desired, even the killing of the offending party. ”

“ The removal of persons who afford the enemy either moral or material support, or who merely give rise to suspicion that they do so, comes under the same category of laws which apply to countries in a state of war. ”

“ If, from some strange, unaccountable fatality, the people of that kingdom cannot be induced to consult their own security, by such an effectual augmentation as may enable the troops there to act with power and energy, is the commander in chief here to blame? ”

“ On the other hand, the vicarious responsibility which a State bears requires chiefly compulsion to make those officials or other individuals who have committed internationally injurious acts repair as far as possible the wrong done, and punishment, if necessary, of the wrongdoers. ”

“ These instructions bear the stamp of that extreme cautiousness and uncertainty with regard to the employment of decisive measures, which characterized the government of the United States at that period. A force is sent, deemed adequate for any exercise of coercion which may be required, without recourse to a Pretender from whose alliance, a considerable accession of moral influence might have been fairly expected; yet in anticipation of adverse events, or of circumstances not then foreseen, a civil agent is vested with authority to purchase a humiliating peace. ”

“ If custom and regulation leave little freedom of action to the individual members of an armed force, the difficulty—sure to be experienced by them—of shaking themselves clear of their fetters when the need for doing so arises is increased. ”

“ Its purpose, as well as its justification, was to strengthen the government, and to enfeeble the public enemy by taking from the adherents of that enemy the power to use their property in aid of the hostile cause. ”

“ When the necessary Rigor of the military Oeconomy is relaxed by an unbounded Indulgence to superior Officers, when supreme Orders are stripped of all their Meaning and Force, by the arbitrary Construction of those to whom they are directed, when the greatest Offenders, relying upon their affluent Fortunes and almighty Influence, shall be able to resist the united Demands of a whole People, crying for Vengeance, we can never be astonished at the Consequences which will follow. ”

“ For if a power cannot defend itself, but by intercepting the supplies sent to an enemy, necessity will justify such a step, but upon condition of making restoration, unless there be some additional reasons to the contrary. ”

“ If the negligence of our councils, and the misconduct of our commanders, has been such, that no designs have been premeditated; if a war has been carried on by chance, and nothing has succeeded, because nothing has been attempted; if our commanders have not done ill, and have only done nothing; if they have avoided loss by avoiding danger; we may surely inquire to whom such proceedings are to be imputed, whether the defeat of our designs is to be charged upon the strength of our enemy, or the cowardice of our officers ”

“ We tried to do it through the European Ministers, but when the stress came, the disbanded officers proved to us that two pairs of arms are not much use against two thousand. The only form of Control we have is that which is called moral influence—which in practice is a combination of menace, objurgation, and worry. ”

“ What belligerent could ever be induced to engage in the transportation of neutral goods, if the consequence of such an undertaking be that he puts off his own character, and assumes that of the neutral, relinquishes his right of arming, or resisting, without acquiring the immunities or protection of the neutral character. ”

“ By force alone can force oftentimes be repelled, but never thus openly attack power. To ensure success, commence with secrecy and caution. Let not your enemy suppose that you feel aught but friendship for him, and then strike him unawares, when none can know who did the deed: the poisoned bowl, the dagger, or the pistol, are far more certain means than such as you propose. As the injuries our foe inflicts are silent and secret, so, does Heaven decree, must be the retributive punishment. ”

“ The military property of the enemy nation or of its subjects may be confiscated or destroyed, just as an individual has the right to destroy the weapon of an unjust aggressor. Hence, a commander may demolish fortifications, war factories, airships, warships, weapons and artillery ”

“ It does not yet appear, sir, that our enemies, however insolent, look upon us as the proper objects of a conquest, or that they imagine it possible to besiege us in our own ports, or to confine us to the defence of our own country. We are not, therefore, to have recourse to measures, which, if they are ever to be admitted, can be justified by nothing but the utmost distress, and can only become proper, as the last and desperate expedient. ”

“ I wish I could extend protection to all, but the numerous detachments necessary to remedy the evil would amount to a dissolution of the army, or make the most important operations of the campaign depend upon the piratical expeditions of two or three men-of-war and transports. ”

“ But, speaking of rigid rules, you will soon perceive, that, in a service where there are no courts on shore to protect us, nor any sister-cruisers to look after each other’s welfare, no small portion of power is necessarily vested in the Commander. ”

“ Belligerent measures, too, must come, not from subordinates, but from those empowered to command, and be commensurate only with the opposing array,-the persons, places, and causes where resistance flagrante bello exists of the reckless character justifying violence and a disregard of all ordinary securities and laws. ”