WAR is that state in which we prosecute our right by force. We also understand, by this term, the act itself, or the manner of prosecuting our right by force: but it is more conformable to general usage, and more proper in a treatise on the law of war, to understand this term in the sense we have annexed to it.
Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order. This is the war we are here to consider: — private war, or that which is carried on between private individuals, belongs to the law of nature properly so called.
In treating of the right to security (Book II. Chap. IV.), we have shown that nature gives men a right to employ force, when it is necessary for their defence, and for the preservation of their rights. This principle is generally acknowledged: reason demonstrates it; and nature herself has engraved it on the heart of man. Some fanatics indeed, taking in a literal sense the moderation recommended in the gospel, have adopted the strange fancy of suffering themselves to be massacred or plundered, rather than oppose force to violence. But we need not fear that this error will make any great progress. The generality of mankind will, of themselves, guard against its contagion — happy, if they as well knew how to keep within the just bounds which nature has set to a right that is granted only through necessity! To mark those just bounds, — and, by the rules of justice, equity, and humanity, to moderate the exercise of that harsh, though too often necessary right — is the intention of this third book.
As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature, — the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it, — that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).
Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.1 Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.
War is either defensive or offensive. He who takes up arms to repel the attack of an enemy, carries on a defensive war. He who is foremost in taking up arms, and attacks a nation that lived in peace with him, wages offensive war. The object of a defensive war is very simple; it is no other than self defence: in that of offensive war there is as great a variety as in the multifarious concerns of nations; but, in general, it relates either to the prosecution of some rights, or to safety. We attack a nation with a view either to obtain something to which we lay claim, to punish her for an injury she has done us, or to prevent one which she is preparing to do, and thus avert a danger with which she seems to threaten us. I do not here speak of the justice of war: — that shall make the subject of a particular chapter; — all I here propose is to indicate, in general, the various objects for which a nation takes up arms — objects which may furnish lawful reasons, or unjust pretences, but which are at least susceptible of a colour of right. I do not, therefore, among the objects of offensive war, set down conquest, or the desire of invading the property of others: views of that nature, destitute even of any reasonable pretext to countenance them, do not constitute the object of regular warfare, but of robbery, which we shall consider in its proper place.
(136) See definition of war and of the king's sole right to declare it, as regards England, per Sir Wm. Scott, The Hoop 1 Rob. R. 196; Nayade, 4 Rob. Rep. 252; Bro. Ab. tit. Denizen, pl. 20. and Chitty's L.N. 28, 29, 30. — C.
(137) The right of declaring war is, by his prerogative, vested in the king of the United Kingdom of Great Britain and Ireland. Bro. Ab. tit. Denizen, pl. 20. The ship Hoop, per Sir W. Scott, 1 Rob. R. 196, post, 432. — C. {And, by the Constitution of the United States, in Congress. Art. 1 § 8.}
1. I here speak of the right considered in itself. But as a king of England cannot, without the concurrence of parliament, either raise money or compel his subjects to take up arms, his right of making war is, in fact, but a slender prerogative, unless the parliament second him with supplies. — Ed. 1797.
THE sovereign is the real author of war, which is carried on in his name, and by his order. The troops, officers, soldiers, and, in general, all those by whose agency the sovereign makes war, are only instruments in his hands. They execute his will and not their own. The arms, and all the apparatus of things used in war, are instruments of an inferior order. For the decision of questions that will occur in the sequel, it is of importance to determine precisely what are the things which belong to war. Without entering here into a minute detail, we shall only observe that whatever is peculiarly used in waging war, is to be classed among the instruments of war; and things which are equally used at all times, such as provisions, belong to peace, unless it be in certain particular junctures, when those things appear to be specially destined for the support of war. Arms of all kinds, artillery, gun-powder, salt-petre and sulphur of which it is composed, ladders, gabions, tools and all other implements for sieges, materials for building ships of war, tents, soldiers' clothes, &c.: these always belong to war.
As war cannot be carried on without soldiers, it is evident that whoever has the right of making war, has also naturally that of raising troops. The latter, therefore, belongs likewise to the sovereign (§ 4), and is one of the prerogatives of majesty (Book I. § 45). The power of levying troops, or raising an army, is of too great consequence in a state, to be intrusted to any other than the sovereign. The subordinate authorities are not invested with it; they exercise it only by order or commission from the sovereign. But it is not always necessary that they should have an express order for the purpose. On those urgent exigencies which do not allow time to wait for the supreme order, the governor of a province, or the commandant of a town, may raise troops for the defence of the town or province committed to their care: and this they do by virtue of the power tacitly given them by their commission in cases of this nature.
I say that this important power is the appendage of sovereignty; it makes a part of the supreme authority. But we have already seen that those rights which together constitute the sovereign power, may be divided (Book I. §§ 31, 45), if such be the will of the nation. It may then happen that a nation does not intrust her chief with a right so dangerous to her liberty as that of raising and supporting troops, or at least that she limits the exercise of it, by making it depend on the consent of her representatives. The king of England, who has the right of making war, has also, indeed that of granting commissions for raising troops; but he cannot compel any person to enlist, nor, without the concurrence of parliament, keep an army on foot.(140)
Every citizen is bound to serve and defend the state as far as he is capable.(140) Society cannot otherwise be maintained; and this concurrence for the common defence is one of the principal objects of every political association. Every man capable of carrying arms should take them up at the first order of him who has the power of making war.
In former times, and especially in small states, immediately on a declaration of war, every man became a soldier; the whole community took up arms, and engaged in the war. Soon after, a choice was made, and armies were formed of picked men, — the remainder of the people pursuing their usual occupations. At present, the use of regular troops is almost everywhere adopted, especially in powerful states. The public authority raises soldiers, distributes them into different bodies under the command of generals and other officers, and keeps them on foot as long as it thinks necessary. As every citizen or subject is bound to serve the state, the sovereign has a right to enlist whom he pleases. But he ought to choose such only as are fit for the occupation of war; and it is highly proper that he should, as far as possible, confine his choice to volunteers who enlist without compulsion.
No person is naturally exempt from taking up arms in defence of the state, — the obligation of every member of society being the same. Those alone are excepted, who are incapable of handling arms, or supporting the fatigues of war. This is the reason why old men, children, and women are exempted. Although there be some women who are equal to men in strength and courage, such instances are not usual; and rules must necessarily be general, and derived from the ordinary course of things. Besides, women are necessary for other services in society; and, in short, the mixture of both sexes in armies would be attended with too many inconveniences.
A good government should, as far as possible, so employ all the citizens, and distribute posts and employments in such manner, that the state may be most effectually served in all its affairs. Therefore, when not urged by necessity, it should exempt from military service all those who are employed in stations useful or necessary to society. Upon this ground, magistrates are usually exempted, — their whole time not being too much for the administration of justice and the maintenance of order.
The clergy cannot naturally, and, as matter of right, arrogate to themselves any peculiar exemption. To defend one's country is an action not unworthy of the most sacred hands. That article of the canon law which forbids ecclesiastics to shed blood, is a convenient device to exempt from personal danger those men who are often so zealous to fan the flame of discord and excite bloody wars. Indeed, for the same reasons which we have above alleged in favour of magistrates, an exemption from bearing arms should be allowed to such of the clergy as really useful, — to those who are employed in teaching religion, governing the church, and celebrating the public worship.1
But those immense multitudes of useless monks and friars, — those drones, who, under pretence of dedicating themselves to God, dedicate themselves in fact to sloth and effeminacy; — by what right do they pretend to a prerogative that is ruinous to the state? And if the prince exempts them from military service, is he not guilty of injustice to the other members, on whom he thus throws the whole burthen? I do not here mean to advise a sovereign to fill his armies with monks, but gradually to diminish a useless class of men, by depriving them of injurious and ill-founded privileges. History mentions a martial bishop2 whose weapon was a club, with which he knocked down the enemy, to avoid incurring the censure of the canon law by shedding their blood, it would be much more reasonable, when monks are exempted from carrying arms, that they should be employed in the work as pioneers, and thus made to alleviate the toil of the soldiers. They have, on many occasions, zealously undertaken the task in cases of necessity. I could mention more than one famous siege where monks have usefully served in defence of their country. When the Turks besieged Malta, the ecclesiastics, the women, the very children, all, according to their respective strength or capacity, contributed to that glorious defence, which baffled the utmost efforts of the Ottoman empire.
There is another class of idle drones, whose exemption is a still more glaring abuse, — I mean those swarms of useless footmen who crowd the dwellings of the great and the wealthy, — and who, by the very nature of their employment, are themselves corrupted in displaying the luxury of their masters.
Among the Romans, while every citizen took his turn to serve in the army, their service was gratuitous. But when a choice is made, and standing armies are kept on foot, the state is bound to pay them, as no individual is under an obligation to perform more than his quota of the public service: and if the ordinary revenues are not sufficient for the purpose, the deficiency must be provided for by taxation. It is but reasonable that those who do not serve should pay their defenders.
When the soldier is not in the field, he must necessarily be provided with quarters. The burthen, in such case, naturally falls on housekeepers: but as that is attended with many inconveniences, and proves very distressing to the citizens, it becomes a good prince, or a wise and equitable government, to ease them of it as far as possible. In this particular, the king of France has made magnificent and ample provision in many towns, by the erection of barracks for the accommodation of the garrison.
The asylums prepared for indigent soldiers and officers who are grown gray in the service, and whom toil or the enemy's sword has rendered incapable of providing for their own subsistence, may be considered as part of the military pay. In France and England, magnificent establishments have been made in favour of invalids, which, while they discharge a debt of a sacred nature, do honour to the sovereign and the nation. The care of those unfortunate victims of war is the indispensable duty of every state, in proportion to its ability. It is repugnant, not only to humanity, but to the strictest justice that generous citizens, heroes who have shed their blood for the safety of their country, should be left to perish with want, or unworthily forced to beg their bread. The honourable maintenance of such persons might very properly be imposed upon rich convents and large ecclesiastical benefices. Nothing can be more just than that those citizens who avoid all the dangers of war, should bestow part of their riches for the relief of their valiant defenders.
Mercenary soldiers are foreigners voluntarily engaging to serve the state for money, or a stipulated pay. As they owe no service to a sovereign whose subjects they are not, the advantages he offers them are their sole motive. By enlisting, they incur the obligation to serve him; and the prince, on his part, promises them certain conditions, which are settled in the articles of enlistment. Those articles, being the rule and measure of the respective obligations and rights of the contracting parties, are to be religiously observed. The complaints of some French historians against the Swiss troops, who on several occasions formerly refused to march against the enemy, and even withdrew from the service, because they were not paid, — those complaints, I say, are equally ridiculous and unjust. Why should the articles of enlistment be more strongly binding on one of the parties than on the other? Whenever the prince fails to perform what he has promised, the foreign soldiers are discharged from any further duty to him. I own it would be ungenerous to forsake a prince who, without any fault on his own part, is by accident alone rendered for a while unable to make good his payments. There may even be occasions when such an inflexibility on the part of the soldier would be, if not contrary to strict justice, at least very repugnant to equity. But this was never the case with the Switzers: they never were known to quit the service on the first failure of payment; and when they perceived the good intentions of a sovereign labouring under a real inability to satisfy them, their patience and zeal always supported them under such difficulties. Henry the Fourth owed them immense sums: yet they did not, in his greatest necessities, abandon him; and that hero found the nation equally generous as brave, I here speak of the Switzers, because, in fact, those above alluded to were often mere mercenaries. But a distinction is to be made between troops of this kind and those Switzers who at present serve different powers, and with the permission of their sovereign, and in virtue of alliances subsisting between those powers and the Helvetic body, or some particular canton. The latter are real auxiliaries, though paid by the sovereign whom they serve.
Much has been said on the question — Whether the profession of a mercenary soldier be lawful or not? Whether individuals may, for money or any other reward, engage to serve a foreign prince in his wars? This question does not to me appear very difficult to be solved. Those who enter into such engagements without the express or tacit consent of their sovereign, offend against their duty as citizens. But if their sovereign leaves them at liberty to follow their inclination for a military life, they are perfectly free in that respect. Now, every free man may join whatever society he pleases, according as he finds it most to his advantage. He may make its cause his own, and espouse its quarrels. He becomes in some measure, at least for a time, a member of the state in whose service he engages: and as an officer is commonly at liberty to quit the service when he thinks proper, and the private soldier at the expiration of his engagement, — if that state embark in a war which is evidently unjust, the foreigner may quit its service. And the mercenary soldier, having now learned the art of war, has rendered himself more capable of serving his country, if ever she require his assistance. This last consideration will furnish us with an answer to a question proposed on this head — Whether the sovereign can with propriety permit his subjects to serve foreign powers indiscriminately for money? He can for this simple reason — that his subject will thus learn an art, of which a thorough knowledge is both useful and necessary. The tranquillity, the profound peace which Switzerland has so long enjoyed in the midst of all the commotions and wars which have agitated Europe, — that long repose would soon become fatal to her, did not her citizens, by serving foreign princes, qualify themselves for the operations of war, and keep alive their martial spirit.
Mercenary soldiers enlist voluntarily. The sovereign has no right to compel foreigners: he must not even employ stratagem or artifice, in order to induce them to engage in a contract, which like all others, should be founded on candour and good faith.
As the right of levying soldiers belongs solely to the nation or the sovereign (§ 7), no person must attempt to enlist soldiers, in a foreign country, without the permission of the sovereign; and, even with that permission, none but volunteers are to be enlisted; for the service of their country is out of the question here; and no sovereign has a right to give or sell his subjects to another.
The man who undertakes to enlist soldiers in a foreign country, without the sovereign's permission, — and, in general, whoever entices away the subjects of another state, violates one of the most sacred rights of the prince and the nation. This crime is distinguished by the name of kidnapping, or man-stealing, and is punished with the utmost severity in every well-regulated state. Foreign recruiters are hanged without mercy, and with great justice. It is not presumed that their sovereign has ordered them to commit a crime; and, supposing even that they had received such an order, they ought not to have obeyed it, — their sovereign having no right to command what is contrary to the law of nature. It is not, I say, presumed that these recruiters act by order of their sovereign; and with respect to such of them as have practised seduction only, it is generally thought sufficient to punish them when they can be detected and caught: if they have used violence, and made their escape, it is usual to demand a surrender of the delinquents, and to claim the persons they have carried off. But if it appears that they acted by order, such a proceeding in a foreign sovereign is justly considered as an injury, and as a sufficient cause for declaring war against him, unless he makes suitable reparation.
All soldiers, natives or foreigners, are to take an oath to serve faithfully, and not desert the service. This is no more than what they are already obliged to, the former as subjects, the latter by their engagement; but their fidelity is of so great importance to the state, that too many precautions cannot be taken for rendering it secure. Deserters merit severe and exemplary punishment; and the sovereign may, if he thinks it necessary, annex the penalty of death to desertion. The emissaries who solicit them to desert are far more guilty than the recruiters mentioned in the preceding section.
Good order and subordination, so useful in all places, are nowhere so necessary as in the army. The sovereign should exactly specify and determine the functions, duties, and rights of military men, — of soldiers, officers, commanders of corps, and generals. He should regulate and fix the authority of commanders in all the gradations of rank, — the punishments to be inflicted on offenders, — the form of trials, &c. The laws and ordinances relative to these several particulars form the military code.
Those regulations, whose particular tendency is to maintain order among the troops, and to enable them to perform their military service with advantage to the state, constitute what is called military discipline. This is of the highest importance. The Switzers were the first among the modern nations that revived it in its ancient vigour. It was a good discipline, added to the valour of a free people, that produced, even in the infancy of their republic, those brilliant achievements which astonished all Europe. Machiavel says that the Switzers are the masters of all Europe in the art of war.3 In our times, the Prussians have shown what may be expected from good discipline and assiduous exercise: soldiers, collected from all quarters, have, by the force of habit, and the influence of command, performed all that could be expected from the most zealous and loyal subjects.
Every military officer, from the ensign to the general, enjoys the rights and authority assigned him by the sovereign; and the will of the sovereign, in this respect, is known by his express declarations, contained either in the commissions he confers or in the military code, — or is, by fair deduction, inferred from the nature of the functions assigned to each officer; for every man who is intrusted with an employment is presumed to be invested with all the powers necessary to enable him to fill his station with propriety, and successfully discharge the several functions of his office.
Thus, the commission of a commander in chief, when it is simple and unlimited, gives him an absolute power over the army — a right to march it whither he thinks proper, to undertake such operations as he finds conducive to the service of the state, &c. It is true, indeed, that the powers of a general are often limited; but the example of Marshal Turenne sufficiently shows, that, when the sovereign is certain of having made a good choice, the best thing he can do in this respect is to give the general an unlimited power. Had the operations of the Duke of Marlborough depended on the directions of the cabinet, there is little probability that all his campaigns would have been crowned with such distinguished success.
When a governor is besieged in the place where he commands, and all communication with his sovereign is cut off, that very circumstance confers on him the whole authority of the state, so far as respects the defence of the town and the safety of the garrison.
These particulars merit the utmost attention, as they furnish a principle for determining what the several commanders, who are the subordinate or inferior powers in war, may execute with sufficient authority. Exclusive of the consequences which may be deduced from the very nature of their employments, we are likewise to consider the general practice and established usage in this respect. If it be a known fact, that, in the service of a particular nation, officers of a certain rank have been uniformly invested with such or such powers, it may reasonably be presumed that the person we are engaged with is furnished with the same powers.
Every promise made by any of the subordinate powers, by any commander within his department, in conformity to the terms of his commission and to the authority which he naturally derives from his office and the functions intrusted to his care, — every such promise, I say, is, for the reasons above alleged, made in the name and by the authority of the sovereign, and equally obligatory on him as if he had himself personally made it. Thus, a governor capitulates for the town which he commands, and for the garrison; and what he has promised, the sovereign cannot invalidate. In the last war, the general who commanded the French at Lintz, engaged to march back his troops on this side of the Rhine. Governors of towns have often promised that, for a limited time, their garrisons should not carry arms against the enemy with whom they capitulated: and these capitulations have always been faithfully observed
But, if a subordinate power allows himself a greater latitude, and exceeds the authority annexed to his office, his promise becomes no more than a private engagement, or what is called sponsio, of which we have already treated, (Book II. Chap. XIV.) This was the case with the Roman consuls at the Furcæ Caudinæ. They might, indeed, agree to deliver hostages, and that their army should pass under the yoke, &c., but they were not authorized to conclude a peace, as they took care to signify to the Samnites.
If a subordinate power assumes an authority which he does not possess, and thus deceives the party treating with him, though an enemy, — he is naturally responsible for the damage caused by his deception, and bound to make reparation. I say "though an enemy:" for the faith of treaties is to be observed between enemies, as all men of principle agree, and as we shall prove in the sequel. The sovereign of that fraudulent officer ought to punish him, and oblige him to repair his fault: it is a duty which the prince owes to justice, and to his own character.
Promises made by a subordinate power are obligatory on those who are subject to his control, and bind them in every particular in which he is authorized and accustomed to command their obedience: for, with respect to such particulars, he is vested with the sovereign authority, which his inferiors are bound to respect in his person. Thus, in a capitulation, the governor of a town stipulates and promises for his garrison, and even for the magistrates and citizens.
(138) What are instruments of war, or contraband, and of the prohibitions respecting them, as regards neutral commerce, see Chitty's L.N. 119 to 128; 1 Chitty's Commercial Law, 445 to 449. L'art de la guerre n'est pas ainsi qu'on le croit vulgairement, l'art de detreure mais l'art de paralyser des forces de l'ennemi. Cours le Droit Public. — Paris, 1830; tom 2, pages 85, 86, & Id 406. — C.
(139) But semble, that anciently the king might press men to serve on land as soldiers. Barrington's Observations on Ancient Statutes, 334. The right of pressing men to serve in the Navy constitutes an exception. Its legality cannot now be effectually disputed, per Lord Mansfield, King v. Jubbs, Cowp. 517; per Lord Kenyon, 5 Term R. 276; 9 East, 466; 5 East, 477; 14 East, 346; 2 Camp. 320, and see Barrington's Observations on Ancient Statutes, 334, 5 edit.; 1 Bla. Com. 420 n. 13. It should seem that every passenger on board a merchant ship is bound to assist in her defence; and if he refuse, he may be confined until all danger from the attack has subsided. Boyce v. Bailiff, 1 Campb. 60. — C.
(140) See note (139) ante.
1. Formerly bishops went to war in virtue of their fiefs, and led with them their vassals. The Danish bishops were not inattentive to a function which pleased them better than the peaceful cares of episcopacy. The famous Absalom, bishop of Roschild, and afterwards archbishop of Lunden, was the principal general of king Waldemarl. And since the use of regular troops has superseded that feudal service, there have not been wanting some martial prelates who eagerly courted the command of armies. The cardinal De la Valette, and Sourdis, archbishop of Bordeaux, appeared in arms under the ministry of cardinal Richelieu, who also acted himself in a military capacity at the attack of the pass of Susa. This is an abuse which the church very justly opposes. A bishop makes a better appearance in his proper station, in his diocese, than in the army; and, at present, sovereigns are in no want of generals and officers, who will perform more useful services than can be expected from churchmen. In short, let every person keep to his vocation. All I dispute with the clergy, is their exemption as matter of right and in cases of necessity. — Ed. 1797.
2. A bishop of Beauvais, under Philip Augustus. He fought at the battle of Bouvines.
3. Disc. on Livy.
WHOEVER entertains a true idea of war, — whoever considers its terrible effects, its destructive and unhappy consequences, will readily agree that it should never be undertaken without the most cogent reasons. Humanity revolts against a sovereign, who, without necessity or without very powerful reasons, lavished the blood of his most faithful subjects, and exposes his people to the calamities of war, when he has it in his power to maintain them in the enjoyment of an honourable and salutary peace. And if to this imprudence, this want of love for his people, he moreover adds injustice towards those he attacks, — of how great a crime, or rather, of what a frightful scries of crimes, does he not become guilty! Responsible for all the misfortunes which ho draws down on his own subjects, he is moreover loaded with the guilt of all those which he inflicts on an innocent nation. The slaughter of men, the pillage of cities, the devastation of provinces, — such is the black catalogue of his enormities. He is responsible to God, and accountable to human nature, for every individual that is killed, for every hut that is burned down. The violences, the crimes, the disorders of every kind, attendant on the tumult and licentiousness of war, pollute his conscience, and are set down to his account, as he is the original author of them all. Unquestionable truths! alarming ideas!! which ought to affect the rulers of nations, and, in all their military enterprises, inspire them with a degree of circumspection proportionate to the importance of the subject!
Were men always reasonable, they would terminate their contests by the arms of reason only; natural justice and equity would be their rule, or their judge. Force is a wretched and melancholy expedient against those who spurn at justice, and refuse to listen to the remonstrances of reason: but, in short, it becomes necessary to adopt that mode, when every other proves ineffectual. It is only in extremities that a just and wise nation, or a good prince, has recourse to it, as we have shown in the concluding chapter of the second book. The reasons which may determine him to take such a step are of two classes. Those of the one class show that he has a right to make war, — that he has just grounds for undertaking it: — these are called justificatory reasons. The others, founded on fitness and utility, determine whether it be expedient for the sovereign to undertake a war, — these are called motives.
The right of employing force, or making war, belongs to nations no farther than is necessary for their own defence, and for the maintenance of their rights (§ 3). Now, if any one attacks a nation, or violates her perfect rights, he does her an injury. Then, and not till then, that nation has a right to repel the aggressor, and reduce him to reason. Further, she has a right to prevent the intended injury, when she sees herself threatened with it (Book II. § 50). Let us then say in general, that the foundation, or cause of every just war is injury, either already done or threatened. The justificatory reasons for war show that an injury has been received, or so far threatened as to authorize a prevention of it by arms. It is evident, however, that here the question regards the principal in the war, and not those who join in it as auxiliaries. When, therefore, we would judge whether a war be just, we must consider whether he who undertakes it has in fact received an injury, or whether he be really threatened with one. And, in order to determine what is to be considered as an injury, we must be acquainted with a nation's rights, properly so called, — that is to say, her perfect rights. These are of various kinds, and very numerous, but may all be referred to the general heads of which we have already treated, and shall further treat in the course of this work. Whatever strikes at these rights is an injury, and a just cause of war.
The immediate consequence of the premises is, that if a nation takes up arms when she has received no injury, nor is threatened with any, she undertakes an unjust war. Those alone, to whom an injury is done or intended, have a right to make war.
From the same principle we shall likewise deduce the just and lawful object of every war, which is, to avenge or prevent injury. To avenge signifies here to prosecute the reparation of an injury, if it be of a nature to be repaired, — or, if the evil be irreparable, to obtain a just satisfaction, — and also to punish the offender, if requisite, with a view of providing for our future safety. The right to security authorizes us to do all this (Book II. §§ 49-52). We may therefore distinctly point out, as objects of a lawful war, the three following: — 1. To recover what belongs, or is due to us. 2. To provide for our future safety by punishing the aggressor or offender. 3. To defend ourselves, or to protect ourselves from injury, by repelling unjust violence. The two first are the objects of an offensive, the third of a defensive war. Camillus, when on the point of attacking the Gauls, concisely set forth to his soldiers all the subjects on which war can be grounded or justified — omnia, quæ defendi, repetique, et ulcisci fas sit.1
As the nation, or her ruler, ought, in every undertaking, not only to respect justice, but also to keep in view the advantage of the state, it is necessary that proper and commendable motives should concur with the justificatory reasons, to induce a determination to embark in a war. These reasons show that the sovereign has a right to take up arms, that he has just cause to do so. The proper motives show, that in the present case it is advisable and expedient to make use of his right. These latter relate to prudence, as the justificatory reasons come under the head of justice.
I call proper and commendable motives those derived from the good of the state, from the safety and common advantage of the citizens. They are inseparable from the justificatory reasons, — a breach of justice being never truly advantageous. Though an unjust war may for a time enrich a state, and extend her frontiers, it renders her odious to other nations, and exposes her to the danger of being crushed by them. Besides, do opulence and extent of dominion always constitute the happiness of states? Amidst the multitude of examples which might here be quoted, let us confine our view to that of the Romans. The Roman republic ruined herself by her triumphs, by the excess of her conquests and power. Rome, when mistress of the world, but enslaved by tyrants and oppressed by a military government, had reason to deplore the success of her arms, and to look back with regret on those happy times when her power did not extend beyond the bounds of Italy, or even when her dominion was almost confined within the circuit of her walls.
Vicious motives are those which have not for their object the good of the state, and which, instead of being drawn from that pure source, are suggested by the violence of the passions. Such are the arrogant desire of command, the ostentation of power, the thirst of riches, the avidity of conquest, hatred, and revenge.
The whole right of the nation, and consequently of the sovereign, is derived from the welfare of the state; and by this rule it is to be measured. The obligation to promote and maintain the true welfare of the society or state gives the nation a right to take up arms against him who threatens or attacks that valuable enjoyment. But if a nation, on an injury done to her, is induced to take up arms, not by the necessity of procuring a just reparation, but by a vicious motive, she abuses her right. The viciousness of the motive tarnishes the lustre of her arms, which might otherwise have shone in the cause of justice: — the war is not undertaken for the lawful cause which the nation had to engage in it: that cause is now no more than a pretext. As to the sovereign in particular, the ruler of the nation — what right has he to expose the safety of the state, with the lives and fortunes of the citizens, to gratify his passions? It is only for the good of the nation that the supreme power is intrusted to him; and it is with that view that he ought to exert it: that is the object prescribed to him even in his least important measures: and shall he undertake the most important and the most dangerous, from motives foreign or contrary to that great end? Yet nothing is more common that such a destructive inversion of views; and it is remarkable, that, on this account, the judicious Polybius gives the name of causes2 to the motives on which war is undertaken, — and of pretexts3 to the justificatory reasons alleged in defence of it. Thus he informs us that the cause of the war which Greece undertook against the Persians was the experience she had had of their weakness, and that the pretext alleged by Philip, or by Alexander after him, was the desire of avenging the injuries which the Greeks had so often suffered, and of providing for their future safety.
Let us, however, entertain a better opinion of nations and their rulers. There are just causes of war, real justificatory reasons; and why should there not be sovereigns who sincerely consider them as their warrant, then they have besides reasonable motives for taking up arms? We shall therefore give the name of pretexts to those reasons alleged as justificatory, but which are so only in appearance, or which are even absolutely destitute of all foundation. The name of pretexts may likewise be applied to reasons which are, in themselves, true and well-founded, but, not being of sufficient importance for undertaking a war, are made use of only to cover ambitious views, or some other vicious motive. Such was the complaint of the czar Peter I. that sufficient honours had not been paid him on his passage through Riga. His other reasons for declaring war against Sweden I here omit.
Pretexts are at least a homage which unjust men pay to justice. He who screens himself with them shows that he still retains some sense of shame. He does not openly trample on what is most sacred in human society: he tacitly acknowledges that a flagrant injustice merits the indignation of all mankind.
Whoever, without justificatory reasons, undertakes a war merely from motives of advantage, acts without any right, and his war is unjust. And he, who, having in reality just grounds for taking up arms, is nevertheless solely actuated by interested views in resorting to hostilities, cannot indeed be charged with injustice, but he betrays a vicious disposition: his conduct is reprehensible, and sullied by the badness of his motives. War is so dreadful a scourge, that nothing less than manifest justice, joined to a kind of necessity, can authorize it, render it commendable, or at least exempt it from reproach,
Nations that are always ready to take up arms on any prospect of advantage, are lawless robbers: but those who seem to delight in the ravages of war, who spread it on all sides, without reasons or pretexts, and even without any other motive than their own ferocity, are monsters, unworthy the name of men. They should be considered as enemies to the human race, in the same manner as, in civil society, professed assassins and incendiaries are guilty, not only towards the particular victims of their nefarious deeds, but also towards the state, which therefore proclaims them public enemies. All nations have a right to join in a confederacy for the purpose of punishing and even exterminating those savage nations. Such were several German tribes mentioned by Tacitus — such those barbarians who destroyed the Roman empire: nor was it till long after their conversion to Christianity that this ferocity wore off. Such have been the Turks and other Tartars — Genghis Khan, Timur Bec or Tamerlane, who, like Attila, were scourges employed by the wrath of Heaven, and who made war only for the pleasure of making it. Such are, in polished ages and among the most civilized nations, those supposed heroes, whose supreme delight is a battle, and who make war from inclination purely, and not from love to their country.
Defensive war is just when made against an unjust aggressor. This requires no proof. Self-defence against unjust violence is not only the right, but the duty of a nation, and one of her most sacred duties. But if the enemy who wages offensive war has justice on his side, we have no right to make forcible opposition; and the defensive war then becomes unjust: for that enemy only exerts his lawful right: — he took arms only to obtain justice which was refused to him; and it is an act of injustice to resist any one in the exertion of his right.
All that remains to be done in such a case is, to offer the invader a just satisfaction. If he will not be content with this, a nation gains one great advantage — that of having turned the balance of justice on her own side; and his hostilities, now becoming unjust, as having no longer any foundation, may very justly be opposed.
The Samnites, instigated by the ambition of their chiefs, had ravaged the lands of the allies of Rome. When they became sensible of their misconduct, they offered full reparation for the damages, with every reasonable satisfaction: but all their submissions could not appease the Romans; whereupon Caius Pontius, general of the Samnites, said to his men, "Since the Romans are absolutely determined on war, necessity justifies it on our side; an appeal to arms becomes lawful on the part of those who are deprived of every other resource." — Justum est bellum, quibus necessarium; et pia arma, quibus nulla nisi in armis relinquitur spes.4
In order to estimate the justice of an offensive war, the nature of the subject for which a nation takes up arms must be first considered. We should be thoroughly assured of our right, before we proceed to assert it in so dreadful a manner. If, therefore, the question relates to a thing which is evidently just, as the recovery of our property, the assertion of a clear and incontestable right, or the attainment of just satisfaction for a manifest injury, and if we cannot obtain justice otherwise than by force of arms, offensive war becomes lawful. Two things are therefore necessary to render it just: 1, some right which is to be asserted — that is to say, that we be authorized to demand something of another nation: 2, that we be unable to obtain it otherwise than by force of arms, Necessity alone warrants the use of force. It is a dangerous and terrible resource. Nature, the common parent of mankind, allows of it only in cases of the last extremity, and when all other means fail. It is doing wrong to a nation, to make use of violence against her, before we know whether she be disposed to do us justice, or to refuse it.
Those who without trying pacific measures, run to arms on every trifling occasion, sufficiently show that justificatory reasons are, in their mouths, mere pretexts: they eagerly seize the opportunity of indulging their passions and gratifying their ambition under some colour of right.
In a doubtful cause, where the rights are uncertain, obscure and disputable, all that can be reasonably required is, that the question be discussed (Book II. § 331), and that, if it be impossible fully to clear it up, the contest be terminated by an equitable compromise. If, therefore, one of the parties should refuse to accede to such conciliatory measures, the other is justifiable in taking up arms to compel him to an accommodation. And we must observe, that war does not decide the question: victory only compels the vanquished to subscribe to the treaty which terminates the difference. It is an error, no less absurd than pernicious, to say that war is to decide controversies between those who acknowledge no superior judge — as is the case with nations. Victory usually favours the cause of strength and prudence, rather than that of right and justice. It would be a bad rule of decision; but it is an effectual mode of compelling him who refuses to accede to such measures as are consonant to justice; and it becomes just in the hands of a prince who uses it seasonably, and for a lawful cause.
War cannot be just on both sides. One party claims a right; the other disputes it: the one complains of an injury: the other denies having done it. They may be considered as two individuals disputing on the truth of a proposition; and it is impossible that two contrary sentiments should be true at the same time.
It may however happen that both the contending parties are candid and sincere in their intentions; and, in a doubtful cause, it is still uncertain which side is in the right. Wherefore, since nations are equal and independent (Book II. § 36, and Prelim. §§ 18, 19), and cannot claim a right of judgment over each other, it follows, that in every case susceptible of doubt, the arms of the two parties at war are to be accounted equally lawful, at least as to external effects, and until the decision of the cause. But neither does that circumstance deprive other nations of the liberty of forming their own judgment on the case, in order to determine how they are to act, and to assist that party who shall appear to have right on his side; nor does that effect of the independence of nations operate in exculpation of the author of an unjust war, who certainly incurs a high degree of guilt. But if he acts in consequence of invincible ignorance or error, the injustice of his arms is not imputable to him.
When offensive war has for its object the punishment of a nation, it ought, like every other war, to be founded on right and necessity. 1. On right: — an injury must have been actually received. Injury alone being a just cause of war (§ 26), the reparation of it may be lawfully prosecuted: or if, in its nature, it be irreparable (the only case in which we are allowed to punish), we are authorized to provide for our own safety, and even for that of all other nations, by inflicting on the offender a punishment capable of correcting him, and serving as an example to others. 2. A war of this kind must have necessity to justify it; that is to say, that, to be lawful, it must be the only remaining mode to obtain a just satisfaction; which implies a reasonable security for the time to come. If that complete satisfaction, be offered, or if it may be obtained without a war, the injury is done away, and the right to security no longer authorizes us to seek vengeance for it. — (See Book II. §§ 49, 52.)
The nation in fault is bound to submit to a punishment which she has deserved, and to suffer it by way atonement: but she is not obliged to give herself up to the discretion of an incensed enemy. Therefore, when attacked she ought to make a tender of satisfaction, and ask what penalty is required; and if no explicit answer be given, or the adversary attempts to impose a disproportionate penalty, she then acquires a right to resist, and her defence becomes lawful.
On the whole, however, it is evident that the offended party alone has a right to punish independent persons. We shall not here repeat what we have said elsewhere (Book II. § 7) of the dangerous mistake, or extravagant pretensions, of those who assume a right of punishing an independent nation for faults which do not concern them — who, madly setting themselves up as defenders of the cause of God, take upon them to punish the moral depravity, or irreligion, of a people not committed to their superintendency.
Here a very celebrated question, and of the highest importance, presents itself. It is asked, whether the aggrandizement of a neighbouring power, by whom a nation fears she may one day be crushed, be a sufficient reason for making war against him — whether she be justifiable in taking up arms to oppose his aggrandizement, or to weaken him, with the sole view of securing herself from those dangers which the weaker states have almost always reason to apprehend from an overgrown power. To the majority of politicians this question is no problem: it is more difficult of solution to those who wish to see justice and prudence ever inseparably united.
On the one hand, a state that increases her power by all the arts of good government, does no more than what is commendable — she fulfils her duties towards herself without violating those which she owes to other nations. The sovereign, who, by inheritance, by free election, or by any other just and honourable means, enlarges his dominions by the addition of new provinces or entire kingdoms, only makes use of his right, without injuring any person. How then should it be lawful to attack a state which, for its aggrandizement, makes use only of lawful means? We must either have actually suffered an injury or be visibly threatened with one, before we are authorized to take up arms, or have just grounds for making war (§§ 26, 27). On the other hand, it is but too well known, from sad and uniform experience, that predominating powers seldom fail to molest their neighbours, to oppress them, and even totally subjugate them, whenever an opportunity occurs, and they can do it with impunity. Europe was on the point of falling into servitude for want of a timely opposition to the growing fortune of Charles V. Is the danger to be waited for? Is the storm, which might be dispersed at its rising, to be permitted to increase? Are we to allow of the aggrandizement of a neighbour, and quietly wait till he makes his preparations to enslave us? Will it be a time to defend ourselves when we are deprived of the means? Prudence is a duty incumbent on all men, and most pointedly so on the heads of nations, as being commissioned to watch over the safety of a whole people. Let us endeavour to solve this momentous question, agreeably to the sacred principles of the law of nature and of nations. We shall find that they do not lead to weak scruples, and that it is an invariable truth that justice is inseparable from sound policy.
And first, let us observe, that prudence, which is, no doubt, a virtue highly necessary in sovereigns, can never recommend the use of unlawful means for the attainment of a just and laudable end. Let not the safety of the people, that supreme law of the state, be alleged here in objection; for the very safety of the people itself, and the common safety of nations, prohibit the use of means which are repugnant to justice and probity. Why are certain means unlawful? If we closely consider the point, if we trace it to its first principles, we shall see that it is purely because the introduction of them would be pernicious to human society, and productive of fatal consequences to all nations.
See particularly what we have said concerning the observance of justice (Book II. Chap. V.). For the interest, therefore, and even the safety of nations, we ought to hold it as a sacred maxim, that the end does not sanctify the means. And since war is not justifiable on any other ground than that of avenging an injury received, or preserving ourselves from one with which we are threatened (§ 26), it is a sacred principle of the law of nations, that an increase of power cannot, alone and of itself, give any one a right to take up arms in order to oppose it.
No injury has been received from that power (so the question supposes); we must, therefore, have good grounds to think ourselves threatened by him, before we can lawfully have recourse to arms. Now power alone does not threaten an injury: — it must be accompanied by the will. It is, indeed, very unfortunate for mankind, that the will and inclination to oppress may be almost always supposed, where there is a power of oppressing with impunity. But these two things are not necessarily inseparable: and the only right which we derive from the circumstance of their being generally or frequently united, is, that of taking the first appearances for a sufficient indication. When once a state has given proofs of injustice, rapacity, pride, ambition, or an imperious thirst of rule, she becomes an object of suspicion to her neighbours, whose duty it is to stand on their guard against her. They may come upon her at the moment when she is on the point of acquiring a formidable accession of power, — may demand securities, — and if she hesitates to give them, may prevent her designs by force of arms. The interests of nations are, in point of importance, widely different from those of individuals: the sovereign must not be remiss in his attention to them, nor suffer his generosity and greatness of soul to supersede his suspicions. A nation that has a neighbour at once powerful and ambitious has her all at stake. As men are under a necessity of regulating their conduct in most cases by probabilities, those probabilities claim their attention in proportion to the importance of the subject: and (to make use of a geometrical expression) their right to obviate a danger is in a compound ratio of the degree of probability and the greatness of the evil threatened. If the evil in question be of a supportable nature, — if it be only some slight loss, — matters are not to be precipitated: there is no great danger in delaying our opposition to it till there be a certainty of our being threatened. But if the safety of the state lies at stake, our precaution and foresight cannot be extended too far. Must we delay to avert our ruin till it is become inevitable? If the appearances are so easily credited, it is the fault of that neighbour who has betrayed his ambition by several indications. If Charles the Second, King of Spain, instead of settling the succession on the Duke of Anjou, had appointed for his heir Louis XIV. himself — to have tamely suffered the union of the monarchy of Spain with that of France, would, according to all the rules of human foresight, have been nothing less than delivering up all Europe to servitude, or at least reducing it to the most critical and precarious situation. But then, if two independent nations think fit to unite, so as afterwards to form one joint empire, have they not a right to do it? And who is authorized to oppose them? I answer, they have a right to form such a union, provided the views by which they are actuated be not prejudicial to other states. Now, if each of the two nations in question be, separately and without assistance, able to govern and support herself, and to defend herself from insult and oppression, it may be reasonably presumed that the object of their coalition is to domineer over their neighbours. And, on occasions where it is impossible or too dangerous to wait for an absolute certainty, we may justly act on a reasonable presumption. If a stranger levels a musket at me in the middle of a forest, I am not yet certain that he intends to kill me; but shall I, in order to be convinced of his design, allow him time to fire? What reasonable casuist will deny me the right to anticipate him? But presumption becomes nearly equivalent to certainty, if the prince who is on the point of rising to an enormous power has already given proofs of imperious pride and insatiable ambition. In the preceding supposition, who could have advised the powers of Europe to suffer such a formidable accession to the power of Louis the Fourteenth? Too certain of the use he would have made of it, they would have joined in opposing it: and in this their safety warranted them. To say that they should have allowed him time to establish his dominion over Spain, and consolidate the union of the two monarchies, — and that, for fear of doing him an injury, they should have quietly waited till he crushed them all, — would not this be, in fact, depriving mankind of the right to regulate their conduct by the dictates of prudence, and to act on the ground of probability? Would it not be robbing them of the liberty to provide for their own safety, as long as they have not mathematical demonstration of its being in danger? It would have been in vain to have preached such a doctrine. The principal sovereigns of Europe, habituated, by the administration of Louvois, to dread the views and power of Louis XIV., carried their mistrust so far, that they would not even suffer a prince of the house of France to sit on the throne of Spain, though invited to it by the nation, whose approbation had sanctioned the will of her former sovereign. He ascended it, however, notwithstanding the efforts of those who so strongly dreaded his elevation; and it has since appeared that their policy was too suspicious.
It is still easier to prove, that, should that formidable power betray an unjust and ambitious disposition, by doing the least injustice to another, all nations may avail themselves of the occasion, and, by joining the injured party, thus form a coalition of strength, in order to humble that ambitious potentate, and disable him from so easily oppressing his neighbours, or keeping them in continual awe and fear. For an injury gives us a right to provide for our future safety, by depriving the unjust aggressor of the means of injuring us; and it is lawful and even praiseworthy to assist those who are oppressed, or unjustly attacked.
Enough has been said on this subject, to set the minds of politicians at case, and relieve them from all apprehension that a strict and punctilious observance of justice in this particular would pave the way to slavery. It is perhaps wholly unprecedented that a state should receive any remarkable accession of power, without giving other states just causes of complaint. Let the other nations be watchful and alert in repressing that growing power, and they will have nothing to fear. The emperor Charles V. laid hold on the pretext of religion, in order to oppress the princes of the empire, and subject them to his absolute authority. If, by following up his victory over the elector of Saxony, he had accomplished that vast design, the liberties of all Europe would have been endangered. It was therefore with good reason that France assisted the protestants of Germany: — the care of her own safety authorized and urged her to the measure. When the same prince seized on the duchy of Milan, the sovereigns of Europe ought to have assisted France in contending with him for the possession of it, and to have taken advantage of the circumstance, in order to reduce his power within just bounds. Had they prudently availed themselves of the just causes which he soon gave them to form a league against him, they would have saved themselves the subsequent anxieties for their tottering liberty.
But, suppose that powerful state, by the justice and circumspection of her conduct, affords us no room to take exception to her proceedings, are we to view her progress with an eye of indifference? Are we to remain quiet spectators of the rapid increase of her power, and imprudently expose ourselves to such designs as it may inspire her with? — No, beyond all doubt. In a matter of so high importance, imprudent supineness would be unpardonable. The example of the Romans is a good lesson for all sovereigns. Had the potentates of those times concerted together to keep a watchful eye on the enterprises of Rome, and to check her incroachments, they would not have successively fallen into servitude. But force of arms is not the only expedient by which we may guard against a formidable power. There are other means, of a gentler nature, and which are at all times lawful. The most effectual is a confederacy of the less powerful sovereigns, who, by this coalition of strength, become able to hold the balance against that potentate whose power excites their alarms. Let them be firm and faithful in their alliance; and their union will prove the safety of each.
They may also mutually favour each other, to the exclusion of him whom they fear; and by reciprocally allowing various advantages to the subjects of the allies, especially in trade, and refusing them to those of that dangerous potentate, they will augment their own strength, and diminish his, without affording him any just cause of complaint, since every one is at liberty to grant favours and indulgences at his own pleasure.
Europe forms a political system, an integral body, closely connected by the relations and different interests of the nations inhabiting this part of the world. It is not, as formerly, a confused heap of detached pieces, each of which though herself very little concerned in the fate of the others, and seldom regarded things which did not immediately concern her. The continual attention of sovereigns to every occurrence, the constant residence of ministers, and the perpetual negotiations, make of modern Europe a kind of republic, of which the members — each independent, but all linked together by the ties of common interest — unite for the maintenance of order and liberty. Hence arose that famous scheme of the political balance, or the equilibrium of power; by which is understood such a disposition of things, as that no one potentate be able absolutely to predominate, and prescribe laws to the others.
The surest means of preserving that equilibrium would be, that no power should be much superior to the others, that all, or at least the greater part, should be nearly equal in force. Such a project has been attributed to Henry the Fourth:5 but it would have been impossible to carry it into execution without injustice and violence. Besides, suppose such equality once established, how could it always be maintained by lawful means? Commerce, industry, military pre-eminence, would soon put an end to it. The right of inheritance, vesting even in women and their descendants, — a rule, which it was so absurd to establish in the case of sovereignties, but which nevertheless is established, — would completely overturn the whole system.
It is a more simple, an easier, and a more equitable plan, to have recourse to the method just mentioned, of forming confederacies in order to oppose the more powerful potentate, and prevent him from giving law to his neighbours. Such is the mode at present pursued by the sovereigns of Europe. They consider the two principal powers, which, on that very account, are naturally rivals, as destined to be checks on each other; and they unite with the weaker, like so many weights thrown into the lighter scale, in order to keep it in equilibrium with the other. The house of Austria has long been the preponderating power: at present France is so in her turn. England, whose opulence and formidable fleets have a powerful influence, without alarming any state on the score of its liberty, because that nation seems cured of the rage for conquest, — England, I say, has the glory of holding the political balance. She is attentive to preserve it in equilibrium: — a system of policy, which is in itself highly just and wise, and will ever entitle her to praise, as long as she continues to pursue it only by means of alliances, confederacies, and other methods equally lawful.
Confederacies would be a sure mode of preserving the equilibrium, and thus maintaining the liberty of nations, did all princes thoroughly understand their true interests, and make the welfare of the state serve as the rule in all their proceedings. Great potentates, however, are but too successful in gaining over partisans and allies, who blindly adopt all their views. Dazzled by the glare of a present advantage, seduced by their avarice, deceived by faithless ministers — how many princes become the tools of a power which will one day swallow up either themselves or their successors! The safest plan, therefore, is to seize the first favourable opportunity, when we can, consistently with justice, weaken the potentate who destroys the equilibrium (§ 45) — or to employ every honourable means to prevent his acquiring too formidable a degree of power. For the purpose, all the other nations should be particularly attentive not to suffer him to aggrandize himself by arms: and this they may at all times do with justice. For, if this prince makes an unjust war, every one has a right to succour the oppressed party. If he makes a just war, the neutral nations may interfere as mediators for an accommodation — they may induce the weaker state to propose reasonable terms and offer a fair satisfaction, and may save her from falling under the yoke of a conqueror. On the offer of equitable conditions to the prince who wages even the most justifiable war, he has all that he can demand. The justice of his cause, as we shall soon see, never gives him a right to subjugate his enemy, unless when that extremity becomes necessary to his own safety, or when he has no other mode of obtaining indemnification for the injury he has received. Now, that is not the case here, as the interposing nations can by other means procure him a just indemnification, and an assurance of safety.
In fine, there cannot exist a doubt, that, if that formidable potentate certainly entertain designs of oppression and conquest, — if he betray his views by his preparations and other proceedings, — the other states have a right to anticipate him; and if the fate or war declares in their favour, they are justifiable in taking advantage of this happy opportunity to weaken and reduce a power too contrary to the equilibrium, and dangerous to the common liberty.
This right of nations is still more evident against a sovereign, who, from an habitual propensity to take up arms without reasons, or even so much as plausible pretexts, is continually disturbing the public tranquillity.
This leads us to a particular question, nearly allied to the preceding. When a neighbour, in the midst of a profound peace, erects fortresses on our frontier, equips a fleet, augments his troops, assembles a powerful army, fills his magazines, — in a word when he makes preparations for war, — are we allowed to attack him, with a view to prevent the danger with which we think ourselves threatened? The answer greatly depends on the manner and character of that neighbour. We must inquire into the reasons of those preparations, and bring him to an explanation: — such is the mode of proceeding in Europe: and if his sincerity be justly suspected, securities may be required of him. His refusal in this case, would furnish ample indication of sinister designs, and a sufficient reason to justify us in anticipating them. But if that sovereign has never betrayed any symptoms of baseness and perfidy, and especially if at that time there is no dispute subsisting between him and us, why should we not quietly rest on his word, only taking such precautions as prudence renders indispensable? We ought not, without sufficient cause, to presume him capable of exposing himself to infamy by adding perfidy to violence. As long as he has not rendered his sincerity questionable, we have no right to require any other security from him.
It is true, however, that, if a sovereign continues to keep up a powerful army in profound peace, his neighbours must not suffer their vigilance to be entirely lulled to sleep by his bare word; and prudence requires that they should keep themselves on their guard. However certain they may be of the good faith of that prince, unforeseen differences may intervene; and shall they leave him the advantage of being provided, at that juncture, with a numerous and well disciplined army, while they themselves will have only new levies to oppose it? Unquestionably no. This would be leaving themselves almost wholly at his discretion. They are, therefore, under the necessity of following his example, and keeping, as he does, a numerous army on foot: and what a burden is this to a state! Formerly, and without going any further back than the last century, it was pretty generally made an article in every treaty of peace, that the belligerent powers should disarm on both sides — that they should disband their troops. If, in a time of profound peace, a prince was disposed to keep up any considerable number of forces, his neighbours took their measures accordingly, formed leagues against him, and obliged him to disarm. Why has not that salutary custom been preserved? The constant maintenance of numerous armies deprives the soil of its cultivators, checks the progress of population, and can only serve to destroy the liberties of the nation by whom they are maintained. Happy England! whose situation exempts it from any considerable charge in supporting the instruments of despotism. Happy Switzerland! if, continuing carefully to exercise her militia, she keeps herself in a condition to repel any foreign enemies, without feeding a host of idle soldiers, who might one day crush the liberties of the people, and even bid defiance to the lawful authority of the sovereign. Of this the Roman legions furnish a signal instance, This happy method of a free republic, — the custom of training up all her citizens to the art of war, — renders the state respectable abroad, and saves it from a very pernicious defect at home. It would have been everywhere imitated, had the public good been everywhere the only object in view.
Sufficient has now been said on the general principles for estimating the justice of a war. Those who are thoroughly acquainted with the principles, and have just ideas of the various rights of nations, will easily apply the rules to particular cases.
(141) See further, as to what are, or are not, just causes for rescinding a treaty of peace, and which seem also to be here applicable, post. B. 4, ch. 4, § 41, 45, p. 49.
1. Livy, lib. v. cap. 49.
2. Aitial. Histor. lib. iii. cap. 6.
3. Prophaseis
4. Livy, lib. ix. init.
5. Of France.
THE right of making war belongs to nations only as a remedy against injustice: it is the offspring of unhappy necessity. This remedy is so dreadful in its effects, so destructive to mankind, so grievous even to the party who has recourse to it, that unquestionably the law of nature allows of it only in the last extremity, — that is to say, when every other expedient proves ineffectual for the maintenance of justice. It is demonstrated in the foregoing chapter, that, in order to be justifiable in taking up arms it is necessary — 1. That we have a just cause of complaint. 2. That a reasonable satisfaction have been denied us. 3. The ruler of the nation, as we have observed, ought maturely to
consider whether it be for the advantage of the state to prosecute his right by force of arms. But all this is not sufficient. As it is possible that the present fear of our arms may make an impression on the mind of our adversary, and induce him to do us justice, — we owe this further regard to humanity, and especially to the lives and peace of the subjects, to declare to that unjust nation, or its chief, that we are at length going to have recourse to the last remedy, and make use of open force, for the purpose of bringing him to reason. This is called declaring war. All this is included in the Roman manner of proceeding, regulated in their fecial law. They first sent the chief of the feciales, or heralds, called pater patratus, to demand satisfaction of the nation who had offended them; and if, within the space of thirty-three days, that nation did not return a satisfactory answer, the herald called the gods to be witnesses of the injustice, and came away, saying that the Romans would consider what measures they should adopt. The king, and in after times the consul, hereupon asked the senate's opinion: and when war was resolved on, the herald was sent back to the frontier, where he declared it.1 It is surprising to find among the Romans such justice, such moderation and prudence, at a time too when, apparently, nothing but courage and ferocity was to be expected from them. By such scrupulous delicacy in the conduct of her wars, Rome laid a most solid foundation for her subsequent greatness.
A declaration of war being necessary, as a further effort to terminate the difference without the effusion of blood, by making use of the principle of fear, in order to bring the enemy to more equitable sentiments, — it ought, at the same time that it announces our settled resolution of making war, to set forth the reasons which have induced us to take up arms. This is, at present, the constant practice among the powers of Europe.
After a fruitless application for justice, a nation may proceed to a declaration of war, which is then pure and simple. But, to include the whole business in a single act, instead of two separate ones, the demand of justice (called by the Romans rerum repetitio) may, if we think proper, be accompanied by a conditional declaration of war, notifying that we will commence hostilities unless we obtain immediate satisfaction on such or such subject, in this case there is no necessity for adding a pure and simple declaration of war, — the conditional one sufficing, if the enemy delays giving satisfaction.
§ 54. The right to make war ceases on
If the enemy, on either declaration of war, offers equitable conditions of peace, we are bound to refrain from hostilities: for as soon as justice is done to us, that immediately supersedes all right to employ force, which we are not allowed to use unless for the necessary maintenance of our rights. To these offers, however, are to be added securities; for we are under no obligation to suffer ourselves to be amused by empty proposals. The word of a sovereign is a sufficient security, as long as he has not disgraced his credit by any act of perfidy: and we should be contented with it. As to the conditions themselves, — besides the principal subject, we have a right to demand a reimbursement of the expenses incurred in our preparations for war.
It is necessary that the declaration of war be known to the state against whom it is made. This is all which the natural law of nations requires. Nevertheless, if custom has introduced certain formalities in the business, those nations who, by adopting the custom, have given their tacit consent to such formalities, are under an obligation of observing them, as long as they have not set them aside by a public renunciation (Prelim. § 26). Formerly, the powers of Europe used to send heralds, or ambassadors to declare war; at present, they content themselves with publishing the declaration in the capital, in the principal towns, or on the frontiers: manifestoes are issued; and, through the easy and expeditious channels of communication which the establishment of posts now affords, the intelligence is soon spread on every side.
Besides the foregoing reasons, it is necessary for a nation to publish the declaration of war for the instruction and direction of her own subjects, in order to fix the date of the rights which belong to them from the moment of this declaration, and in relation to certain effects which the voluntary law of nations attributes to a war in form. Without such a public declaration of war, it would, in a treaty of peace, be too difficult to determine those acts which are to be considered as the effects of war, and those that each nation may set down as injuries of which she means to demand reparation. In the last treaty of Aix-la-Chapelle, between France and Spain on the one side, and England on the other, it was agreed that all the prizes taken before the declaration of war should be restored.
He who is attacked and only wages defensive war, needs not to make any hostile declaration, — the state of warfare being sufficiently ascertained by the enemy's declaration, or open hostilities. In modern times, however, the sovereign who is attacked, seldom omits to declare war in his turn, whether from an idea of dignity, or for the direction of his subjects.
If the nation on whom we have determined to make war will not admit any minister or herald to declare it, — whatever the custom may otherwise be, we may content ourselves with publishing the declaration of hostilities within our own territories, or on the frontier; and if the declaration does not come to the knowledge of that nation before hostilities are commenced, she can only blame herself. The Turks imprison and maltreat even the ambassadors of those powers with whom they are determined to come to a rupture: it would be a perilous undertaking for a herald to go and declare war against them in their own country. Their savage disposition therefore, supersedes the necessity of sending one.
But no person being exempted from his duty for the sole reason that another has been wanting in his, we are not to omit declaring war against a nation, previous to commencement of hostilities, because that nation has, on a former occasion, attacked us without any declaration. That nation, in so doing, has violated the law of nature (§ 51); and her fault does not authorise us to commit a similar one.
The law of nations does not impose the obligation of declaring war, with a view to give the enemy time to prepare for an unjust defence. The declaration, therefore, need not be made till the army has reached the frontiers; it is even lawful to delay it till we have entered the enemy's territories, and there possessed ourselves of an advantageous post: it must, however, necessarily precede the commission of any act of hostility, For thus we provide for our own safety, and equally attain the object of a declaration of war, which is, to give an unjust adversary the opportunity of seriously considering his past conduct, and avoiding the horrors of war, by doing justice. Such was the conduct of that generous prince, Henry the Fourth, towards Charles Emanuel duke of Savoy; who had wearied his patience by vain and fraudulent negotiations.2
If he, who enters a country with an army kept under strict discipline, declares to the inhabitants that he does not come as an enemy, that he will commit no violence, and will acquaint the sovereign with the cause of his coming, — the inhabitants are not to attack him; and should they dare to attempt it, he has a right to chastise them. But they are not to admit him into any strong-holds, nor can he demand admission. It is not the business of subjects to commence hostilities without orders from their sovereign: but if they are brave and loyal, they will, in the mean time, seize on all the advantageous posts, and defend themselves against any attempt made to dislodge them.
After a declaration of war on the part of the sovereign who has thus invaded the country, if equitable conditions are not offered him without delay, he may commence his operations; for, I repeat it, he is under no obligation to suffer himself to be amused. But, at the same time, we are never to lose sight of the principles before laid down (§§ 26 and 51) concerning the only legitimate causes of war. To march an army into a neighbouring country by which we are not threatened, and without having endeavoured to obtain, by reason and justice, an equitable reparation for the wrongs of which we complain, would be introducing a mode pregnant with evils to mankind, and sapping the foundations of the safety and tranquillity of states. If this mode of proceeding be not exploded and proscribed by the public indignation and the concurrence of every civilized people, it will become necessary to continue always in a military posture, and to keep ourselves constantly on our guard, no less in times of profound peace, than during the existence of declared and open war.
The sovereign declaring war can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration. They came into his country under the public faith. By permitting them to enter and reside in his territories, he tacitly promised them full liberty and security for their return. He is therefore bound to allow them a reasonable time for withdrawing with their effects; and, if they stay beyond the term prescribed, he has a right to treat them as enemies, — as unarmed enemies, however. But, if they are detained by an insurmountable impediment, as by sickness, he must necessarily, and for the same reasons, grant them a sufficient extension of the time. At present, so far from being wanting in this duty, sovereigns carry their attention to humanity still farther, so that foreigners, who are subjects of the state against which war is declared, are very frequently allowed full time for the settlement of their affairs. This is observed in a particular manner with regard to merchants; and the case is moreover carefully provided for in commercial treaties. The king of England has done more than this. In his last declaration of war against France, he ordained that all French subjects who were in his dominions should be at liberty to remain, and be perfectly secure in their persons and effects, "provided they demeaned themselves properly,"
We have said (§ 56), that a sovereign is to make the declaration of war public within his dominions, for the information and direction of his subjects. He is also to make known his declaration of war to the neutral powers, in order to acquaint them with the justificatory reasons which authorize it, — the cause which obliges him to take up arms, — and to notify to them that such or such a nation is his enemy, that they may conduct themselves accordingly. We shall even see that this is necessary in order to obviate all difficulty, when we come to treat of the right to seize certain things which neutral persons are carrying to the enemy, and of what termed contraband, in time of war. This publication of the war may be called declaration, and that which is notified directly to the enemy, denunciation; and indeed the Latin term is denunciatio belli.
War is at present published and declared by manifestoes. These pieces never fail to contain the justificatory reasons, good or bad, on which the party grounds his right to take up arms. The least scrupulous sovereign would wish to be thought just, equitable, and a lover of peace: he is sensible that a contrary reputation might be detrimental to him. The manifestoe implying a declaration of war, or the declaration itself, printed, published, and circulated throughout the whole state, contains also the sovereign's general orders to his subjects, relative to their conduct in the war.3
In so civilized an age, it may be unnecessary to observe, that, in those pieces which are published on the subject of war, it is proper to abstain from every opprobrious expression indicative of hatred, animosity, and rage, and only calculated to excite similar sentiments in the bosom of the enemy. A prince ought to preserve the most dignified decorum, both in his words and in his writings. He ought to respect himself in the person of his equals: and, though it is his misfortune to be at variance with a nation, shall he inflame the quarrel by offensive expressions, and thus deprive himself even of the hopes of a sincere reconciliation? Homer's heroes call each other "dog" and "drunkard": but this was perfectly in character, since, in their enmity, they knew no bounds. Frederic Barbarossa, and other emperors, and the popes their enemies, treated each other with as little delicacy. Let us congratulate our age on the superior gentleness of its manners, and not give the name of unmeaning politeness to those attentions which are productive of real and substantial effects.
Those formalities, of which the necessity is deducible from the principles and the very nature of war, are the characteristics of a lawful war in due form (justum bellum). Grotius says.4 that, according to the law of nations, two things are requisite to constitute a solemn or formal war — first, that it be on both sides, made by the sovereign authority, — secondly, that it be accompanied by certain formalities. These formalities consist in the demand of a just satisfaction (rerum repetitio), and in the declaration of war, at least on the part of him who attacks: — for defensive war requires no declaration (§ 57), nor even, on urgent occasions an express order from the sovereign. In effect, these two conditions are necessarily required in every war which shall, according to the law of nations, be a legitimate one, that is to say, such a war as nations have a right to wage. The right of making war belongs only to the sovereign (§ 4); and it is only after satisfaction has been refused to him (§ 37), and even after he has made a declaration of war (§ 51), that he has a right to take up arms.(145)
A war in due form is also called a regular war, because certain rules, either prescribed by the law of nature, or adopted by custom, are observed in it.(146)
Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.
In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.
(142) See in general, Grotius, B. iii. c. iv. s. 8: and 1 Chitty's Com. Law, 378. — C.
1. Livy, lib. i. cap. 31.
(143) But there seems to be no absolute necessity for a formal declaration of war to render it legal. See observations of Sir William Scott, in Nayede, 4 Rob. Rep. 252; Chitty's Law Nat. 29, 3. But in England the king must have assented to a war to render it strictly legal. Brooke's Abrid. tit. "Denizen," pl. 26; The Hoop, 1 Rob. Rep, 196. — C. {The late war between the United States and Great Britain was declared by Act of Congress, June 18th, 1812. (Laws U.S. 1812, p. 227.) But war had existed, in fact, from March 4th until May 13th, 1846, between Mexico and the United States, without any formal declaration. The act of Congress of 13th May, 1846, declares that, "by the act of the Republic of Mexico," war existed between the countries. (Laws U. States, 1846, p. 14.)}
2. See Sully's Memoirs.
(144) See in general 1 Chitty's Com. L. 414. — C.
3. It is remarked as a very singular circumstance, that Charles the Second, king of Great Britain, in his declaration of war against France, dated February 9, 1668, promised security to French subjects who should "demean themselves properly," — and, moreover, his protection and favour to such of them as might choose to emigrate to his dominions.
4. De Jure Belli et Pacis, lib. i. cap. iii. § 4.
(145) Ante, the notes to the same sections. — C.
(146) It has been laid down, that whenever the king's courts are open in a given country, it is time of peace in judgment of law; but, when by hostile measures such courts are shut up or interrupted, then it is said to he time of war. Earl Lancaster's case. Hale's Pleas Crown, Part I. c. 26, p. 344; Co. Litt. 249 b. cited, and other points as to what is war; Elphinstone v. Bedreechund, Knapp's Rep. 316. But at present, when in courts of justice, whether of Common Law, Equity, Admiralty, or Prize Court, it becomes necessary to ascertain what is, or not, evidence of a war, or a peace or neutrality, the same is now usually determined by distinct acts of the state. Upon this question, the following cases are material: — Sir Wm. Grant (in case of Pelham Burke, 1 Edward's Rep. Appendix D; 3 Camp. 62; Blackburne v. Thompson, 15 East, 90, S.P.) observed, that, in order to ascertain whether or not a war or state of amity or neutrality subsists, it always belongs to the Government of the country to determine in what relation any other country stands towards it; and that is a point upon which courts of justice cannot decide; (i.e. without evidence aliunde as to the declarations or resolutions of Government;) and the most potent evidence upon such a subject is the declaration of the state. And if the state recognises any place as being or as not being in the relation of hostility to this country, that is obligatory on courts of justice. Per Lord Ellenborough, 3 Camp. 66; and see other instances and authorities, 1 Chitty's Commercial Law, 393-4. — C. (See, also, The U. States v. Palmer, 3 Wheat. Rep. 634, 635.)
5. Lib. iii. cap, iv.
6. See chap. xii. of this book.
{(146a) Pirates may be lawfully captured by the public or private armed ships of any nation, in peace or war; for they are hostes humani generie. The Mariana Flora, 11 Wheat. Rep, 1.}[This note was numbered (1) by Chitty.]
7. In the year 1602.
THE enemy is he with whom a nation is at open war. The Latins had a particular term (Hostis) to denote a public enemy, and distinguished him from a private enemy (Inimicus). Our language affords but one word for these two classes of persons, who ought, nevertheless to be carefully distinguished. A private enemy is one who seeks to hurt us, and takes pleasure in the evil that befalls us. A public enemy forms claims against us, or rejects ours, and maintains his real or pretended rights by force of arms. The former is never innocent; he fosters rancour and hatred in his heart. It is possible that the public enemy may be free from such odious sentiments, that he does not wish us ill, and only seeks to maintain his rights. This observation is necessary in order to regulate the dispositions of our heart towards a public enemy.
When the sovereign or ruler of the state declares war against another sovereign, it is understood that the whole nation declares war against another nation; for the sovereign represents the nation, and acts in the name of the whole society (Book I. §§ 40, 41;) and it is only in a body, and in her national character, that one nation has to do with another. Hence, these two nations are enemies, and all the subjects of the one are enemies to all the subjects of the other. In this particular, custom and principle are in accord.
Enemies continue such wherever they happen to be. The place of abode is of no consequence here. It is the political ties which determine the character. Whilst a man continues a citizen of his own country, he is the enemy of all those with whom his nation is at war. But we must not hence conclude that these enemies may treat each other as such, wherever they happen to meet. Every one being master in his respective country, a neutral prince will not allow them to use any violence in his territories.
Since women and children are subjects of the state, and members of the nation, they are to be ranked in the class of enemies. But it does not thence follow that we are justifiable in treating them like men who bear arms, or are capable of bearing them. It will appear in the sequel, that we have not the same rights against all classes of enemies.
When once we have precisely determined who our enemies are, it is easy to know what are the things belonging to the enemy (res hostiles). We have shown that not only the sovereign with whom we are at war is an enemy, but also his whole nation, even the very women and children. Every thing, therefore, which belongs to that nation, — to the state, to the sovereign, to the subjects, of whatever age or sex, — everything of that kind, I say, falls under the description of things belonging to the enemy.
And, with respect to things, the case is the same as with respect to persons: — things belonging to the enemy continue such, wherever they are.(147a) But we are not hence to conclude, any more than in the case of persons (§ 71), that we everywhere possess a right to treat those things as things belonging to the enemy.
Since it is not the place where a thing is, which determines the nature of that thing, but the character of the person to whom it belongs, — things belonging to neutral persons, which happen to be in an enemy's country, or on board an enemy's ships, are to be distinguished from those which belong to the enemy. But it is the owner's business to adduce evident proof that they are his property: for, in default of such proof, a thing is naturally presumed to belong to the nation in whose possession it is found.(148)
The preceding section relates to movable property: but the rule is different with respect to immovable possessions, such as landed estates. Since all these do in some measure belong to the nation, are part of its domain, of its territory, and under its government (Book I, §§ 204, 235, Book ii. § 114) — and since the owner is still a subject of the country as possessor of a landed estate, — property of this kind does not cease to be enemy's property (res hostiles), though possessed by a neutral foreigner. Nevertheless, war being now carried on with so much moderation and indulgence, protections are granted for houses and lands possessed by foreigners in an enemy's country. For the same reason, he who declares war does not confiscate the immovable property possessed in his country by his enemy's subjects. By permitting them to purchase and possess such property, he has in that respect admitted them into the number of his subjects. But the income may be sequestrated, in order to prevent its being remitted to the enemy's country.
Among the things belonging to the enemy, are likewise incorporeal things, — all his rights, claims, and debts, excepting, however, those kind of rights granted by a third party, and in which the grantor is so far concerned, that it is not a matter of indifference to him, in what hands they are vested. Such, for instance, are the rights of commerce. But as debts are not of this number, war gives us the same rights over any sums of money due by neutral nations to our enemy, as it can give over his other property.(149)
When Alexander, by conquest, became absolute master of Thebes, he remitted to the Thessalians a hundred talents which they owed to the Thebans.1 The sovereign has naturally the same right over what his subjects may owe to enemies, he may therefore confiscate debts of this nature, if the term of payment happen in the time of war; or at least he may prohibit his subjects from paying while the war continues. But, at present, a regard to the advantage and safety of commerce has induced all the sovereigns of Europe to act with less rigour in this point.(150) And as the custom has been generally received, he who should act contrary to it would violate the public faith; for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. The state does not so much as touch the sums which it owes to the enemy: money lent to the public is everywhere exempt from confiscation and seizure in case of war.
(147) As to the definition of an alien enemy, and of what is less than a general enemy, and merely an hostile character, or hostile residence, or hostile trade, and of the modern decisions on the diversities; see Boedes Lust, 5 Rob. Rep. 233; 1 Chitty's Commercial Law, 394 to 412, Id. Index, tit, Hostile Character, and Chitty L. Nat. 30 to 64.
In some cases, the generous and beneficial conduct of an enemy will obliterate his hostile character, and preclude his property from becoming subject to seizure, as was beautifully Illustrated by Sir W. Scott's decision in Jonge J. Baumannn, where an English frigate, with her officers and crew, having been saved from shipwreck by a foreign (neutral) vessel and crew, the former ingratefully carried the latter into port as prize; {asserting she had French property on board;} but a restoration was decreed, on the ground that such a service had blotted out and obliterated the character of an enemy, {if it had ever existed, which was not the fact.} 1 Rob. Rep. 245; and see §§ 176, post, pp. 374-5.
Of the illegality of commerce between subjects of belligerent states. — Vattel is very succinct upon this, in modern times, the most important consequence of war. In general it is illegal for the private subjects of belligerents to have any commercial transactions or dealings between each other, in expectation of or pending the war; for otherwise assistance might be rendered to the enemy, enabling them to protract the war, and under colour of commerce, secret communications might be made injurious to the states of each country; and therefore there is no such thing as a war for arms, and a peace for commerce. The rule and the principle upon which it is founded, are fully commented upon in the case of The Hoop, 1 Rob. Rep. 196; Potts v. Bell, 8 Term Rep. 546; Mennet v. Bonham, 15 East, 489; William v. Patteson. 7 Taunt. 439; Grotius, B. 3, c. 4, s. 8; Binkershoek, B. 1, c. 3; Chitty's L. Nat. 1 to 27. The exceptions to that rule are sometimes by express treaty; (see 2 Ward's Law of Nat. 358); and in Great Britain have been permitted by temporary acts, or by orders in council, authorizing the privy council to grant licenses. (See Phillimore on Licenses, 5.) The case of prisoners at war contracting for necessaries, constitutes an exception. Antoine v. Morshead, 6 Taunt. 237-447; 1 Marsh. Rep. 558; Danby v. Morshead, 6 Taunt. 332; Vattel, post, § 264, p. 414.
Questions sometimes arise, whether a commercial transaction between parties in different countries, afterwards at war with each other, as for instance, Great Britain and America, pending war, or on the eve of war, between these countries, was pactum illicitum. If it be pending war, or in contemplation of it, and against its spirit, and not expressly licensed by the Government, then it is illegal, See the rule in the case of McGaven v. Stewart, in the House of Lords, (14 July, 1830), 4 Wlls. & Shaw, 193-4. An alien carrying on trade in an enemy's country, though resident there also in the character of consul of a neutral state, has been considered an alien enemy, and as such disabled to sue, and liable to confiscation. Albrecht v. Sussmann, 2 Ves. & Beames, 323.
But these rules prohibiting commerce between the subjects of belligerent states, do not affect neutrals: (excepting, indeed the liability to visitation and search); and therefore, actions may be sustained in England by a neutral on a promissory note given to him by a British subject in an enemy's country, for goods sold by the neutral to the latter there. Cowp. 363; Hourret v. Morris, 3 Camp. 303. And it has even been held, that an Englishman domiciled in a foreign state in amity with this country may lawfully exercise the privileges of a subject of the place where he is resident, to trade with a nation in hostility with England, 1 Maule & Selwyn 726, sed quæ re. {See Livingston v. The Maryland Ins. Co. 7 Cranch, 506.} But in general he who maintains an establishment or house of commerce in a hostile country, is to be considered as impressed with a hostile character, with reference at least to so much of his commerce as may be connected with that establishment; and this, whether he maintains that establishment as a partner, or as a sole trade, The Citto, 3 Rob. 38; The Portland, Id. 41 to 44. — C.
{(147a)See Johnson et al. v. Twenty-one Bales, &c. Van Ness, Prize Causes, p. 7.}[This note was numbered (1) by Chitty.]
(148) As to protection to neutrals' property and modern decisions, see 1 Chitty's Commercial Law, 385-440; Id. Index, tit. Neutrals; 1 Chitty's L. Nat. 34, 54, 110-113, 183; Id. Index, tit. Neutrals. — C.
(149) This was the ancient law of nations. Att. Gen. v. Weedon,
Parker Rep. 267, though certainly denied by Rolle, J. At all events it
is now altered; see authorities, ante, 284, n. (134) 1 Chitty's
Commercial Law, 423; 1 Chitty's L. Nat. 82 to 86. — C.
{But see Fairfax v. Hunter, 5 Cranch, 19.}
1. Grotius, De Jure Belli et Pacis, lib. iii. cap. viii § 4.
WE have sufficiently spoken of treaties in general, and shall here touch on this subject only in its particular relations to war. Treaties relating to war are of several kinds, and vary in their objects and clauses, according to the will of those who make them. Besides applying to them all that we have said of treaties in general (Book II. Ch. XII. &c.), they may also be divided into treaties real and personal, equal and unequal, &c. But they have also their specific differences, viz. those which relate to their particular object, war.
Under this relation, alliances made for warlike purposes are divided in general into defensive and offensive alliances. In the former, the nation engages only to defend her ally in case he be attacked: in the latter, she unites with him for the purpose of making an attack, — of jointly waging war against another nation. Some alliances are both offensive and defensive; and there seldom is an offensive alliance which is not also a defensive one. But it is very usual for alliances to be purely defensive: and these are in general the most natural and lawful. It would be a tedious and even a useless task to enumerate in detail all the varieties incident to such alliances. Some are made, without restriction, against all opponents: in others, certain states are excepted: others again are formed against such or such a nation expressly mentioned by name.
But a difference of great importance to be observed, especially in defensive alliances, is that between an intimate and complete alliance, in which we agree to a union of interests, — and another, in which we only promise a stated succour. The alliance in which we agree to a union of interests is a warlike association: each of the parties acts with his whole force; all the allies become principals in the war, they have the same friends and the same enemies. But an alliance of this nature is more particularly termed a warlike association, when it is offensive.
When a sovereign, without directly taking part in the war made by another sovereign, only sends him succours of troops or ships, these are called auxiliaries.
The auxiliary troops serve the prince to whom they are sent, according to their sovereign's orders. If they are purely and simply sent without restriction, they are to serve equally on the offensive and the defensive; and for the particulars of their operations, they are to obey the directions of the prince to whose assistance they come. Yet this prince has not the free and entire disposal of them, as of his own subjects: they are granted to him only for his own wars; and he has no right to transfer them, as auxiliaries, to a third power.
Sometimes, this succour from a potentate who does not directly take part in the war, consists in money; and then it is called a subsidy. This term is now often taken in another sense, and signifies a sum of money annually paid by one sovereign to another, in return for a body of troops which the latter furnishes to the other to carry on his wars, or keeps in readiness for his service. The treaties for procuring such a resource are called subsidiary treaties. France and England have at present such treaties existing with several of the northern powers and princes in Germany, and continue them even in times of peace.
In order, now, to judge of the morality of these several treaties or alliances, — of their legitimacy according to the law of nations, we must, in the first place, lay down this incontrovertible principle, that It is lawful and commendable to succour and assist, by all possible means, a nation engaged in a just war; and it is even a duty incumbent on every nation, to give such assistance, when she can give it without injury to herself. But no assistance whatever is to be afforded to him who is engaged in an unjust war. There is nothing in this which is not demonstrated by what we have said of the common duties of nations towards each other. (Book II. Ch. I.) To support the cause of justice when we are able, is always commendable: but, in assisting the unjust, we partake of his crime, and become, like him, guilty of injustice.
If, to the principle we have now laid down, you add the consideration of what a nation owes to her own safety, and of the care which it is so natural and so fit that she should take to put herself in a condition to resist her enemies, you will the more readily perceive how clear a right a nation has to make warlike alliances, and especially defensive alliances, whose sole tendency is to maintain all parties in the quiet and secure possession of their property.
But great circumspection is to be used in forming such alliances. Engagements by which a nation maybe drawn into a war at a moment when she least expects it, ought not to be contracted without very important reasons, and a direct view to the welfare of the state. We here speak of alliances made in time of peace, and by way of precaution against future contingencies.
If there be question of contracting an alliance with a nation already engaged in a war, or on the point of engaging in one, two things are to be considered: 1. The justice of that nation's quarrel. 2. The welfare of the state. If the war which a prince wages, or is preparing to wage, be unjust, it is not allowable to form an alliance with him; for injustice is not to be supported. If he is justifiable in taking up arms, it still remains to be considered whether the welfare of the state allows or requires us to embark in his quarrel: for it is only with a view to the welfare of the state that the sovereign ought to use his authority: to that all his measures should tend, and especially those of the most important nature. What other consideration can authorise him to expose his people to the calamities of war?
As it is only for the support of a just war that we are allowed to give assistance or contract alliances, — every alliance, every warlike association, every auxiliary treaty, contracted by way of anticipation in time of peace, and with no view to any particular war, necessarily and of itself includes this tacit clause — that the treaty shall not be obligatory except in case of a just war. On any other footing, the alliance could not be validly contracted. (Book II. §§ 161, 168.)
But care must be taken that treaties of alliance be not thereby reduced to empty and delusive formalities. The tacit restriction is to be understood only of a war which is evidently unjust; for otherwise a pretence for eluding treaties would never be wanting. Is there question of contracting an alliance with a power actually at war? It behooves you most religiously to weigh the justice of his cause: the judgment depends solely on you, since you owe him no assistance any further than as his quarrel is just, and your own circumstances make it convenient for you to embark in it. But when once engaged, nothing less than the manifest injustice of his cause can excuse you from assisting him. In a doubtful case, you are to presume that your ally has justice on his side; that being his concern.
But if you entertain strong doubts, you may very fairly and commendably interpose to effect an accommodation. Thus you may bring the justice of the cause to the test of evidence, by discovering which of the contending parties refuses to accede to equitable conditions.
As every alliance implies the tacit clause above mentioned, he who refuses to succour his ally in a war that is manifestly unjust is not chargeable with a breach of alliance.
When alliances have thus been contracted beforehand, the question is, to determine, in the course of events, those cases in which our engagements come in force, and we are bound to act in consequence of the alliance. This is what is called casus fœderis, or case of the alliance, and is to be discovered in the concurrence of the circumstances for which the treaty has been made, whether those circumstances have been expressly specified in it, or tacitly supposed. Whatever has been promised in the treaty of alliance is due in the casus fœderis, and not otherwise.
As the most solemn treaties cannot oblige any one to favour an unjust quarrel (§ 86): the casus fœderis never takes place in a war that is manifestly unjust.
In a defensive alliance, the casus fœderis does not exist immediately on our ally being attacked. It is still our duty to examine whether he has not given his enemy just cause to make war against him: for we cannot have engaged to undertake his defence with the view of enabling him to insult others, or to refuse them justice. If he is in the wrong, we must induce him to offer a reasonable satisfaction; and if his enemy will not be contented with it, then, and not till then, the obligation of defending him commences.
But if the defensive alliance contains a guarantee of all the territories at that time possessed by the ally, the casus fœderis immediately takes place whenever those territories are invaded or threatened with an invasion. If they are attacked for a just cause, we must prevail on our ally to give satisfaction; but we may on good grounds oppose his being deprived of his possessions, as it is generally with a view to our own security that we undertake to guaranty them. On the whole, the rules of interpretation, which we have given in an express chapter,1 are to be consulted, in order to determine, on particular occasions, the existence of the casus fœderis.
If the state that has promised succours finds herself unable to furnish them, her inability alone is sufficient to dispense with the obligation; and if she cannot give her assistance without exposing herself to evident danger, this circumstance also dispenses with it.
This would be one of those cases in which a treaty becomes pernicious to the state, and therefore not obligatory (Book II. § 160). But we here speak of an imminent danger, threatening the very existence of the state. The case of such a danger is tacitly and necessarily reserved in every treaty. As to remote dangers, or those of no extraordinary magnitude, — since they are inseparable from every military alliance, it would be absurd to pretend that they should create an exception; and the sovereign may expose the nation to them in consideration of the advantages which she reaps from the alliance.
In virtue of these principles, we are absolved from the obligation of sending assistance to an ally while we are ourselves engaged in a war which requires our whole strength. If we are able to oppose our own enemies and to assist our ally at the same time, no reason can be pleaded for such dispensation. But, in such cases, it rests with ourselves to determine what our circumstances and strength will allow. It is the same with other things which may have been promised, as, for instance, provisions. There is no obligation to furnish an ally with them when we want them for our own use.
We forbear to repeat in this place what we have said of various other cases, in discoursing of treaties in general, as, for example, of the preference due to the more ancient ally (Book II. § 167), and to a protector (ibid. § 204), of the meaning to be annexed to the term "allies," in a treaty in which they are reserved (ibid. § 309). Let us only add, on this last question, that, in a warlike alliance made against all opponents, the allies excepted, this exception is to be understood only of the present allies. Otherwise, it would afterwards be easy to elude the former treaty by new alliances; and it would be impossible for us to know either what we are doing in concluding such a treaty, or what we gain by it.
A case which we have not spoken of is this: — Three powers have entered into a treaty of defensive alliance: two of them quarrel, and make war on each other: — how is the third to act? The treaty does not bind him to assist either the one or the other; for it would be absurd to say that he has promised his assistance to each against the other, or to one of the two in prejudice of the other. The only obligation, therefore, which the treaty imposes on him, is to endeavour, by the interposition of his good offices, to effect a reconciliation between his allies; and if his mediation proves unsuccessful, he remains at liberty to assist the party who appears to have justice on his side.
To refuse an ally the succours due to him, without having any just cause to allege for such refusal, is doing him an injury, since it is a violation of the perfect right which we gave him by a formal engagement. I speak of evident cases, it being then only that the right is perfect; for, in those of a doubtful nature, it rests with each party to judge what he is able to do (§ 92): but he is to judge maturely and impartially, and to act with candour. And as it is an obligation naturally incumbent on us, to repair any damage caused by our fault, and especially by our injustice, we are bound to indemnify an ally for all the losses he may have sustained in consequence of our unjust refusal. How much circumspection, therefore, is to be used in forming engagements, which we cannot refuse to fulfil without material injury to our affairs or our honour, and which, on the other hand, if complied with, may be productive of the most serious consequences.
An engagement, which may draw us into a war, is of great moment: in it the very existence of the state is at stake. He who in an alliance promises a subsidy or a body of auxiliaries, sometimes imagines that he only risks a sum of money or a certain number of soldiers; whereas he often exposes himself to war and all its calamities. The nation against whom he furnishes assistance will look upon him as her enemy; and should her arms prove successful, she will carry the war into his country. But it remains to be determined whether she can do this with justice, and on what occasions. Some authors2 decide in general, that whoever joins our enemy, or assists him against us with money, troops, or in any other manner whatever, becomes thereby our enemy, and gives us a right to make war against him: — a cruel decision, and highly inimical to the peace of nations! It cannot be supported by principles; and happily the practice of Europe stands in opposition to it.
It is true, indeed, that every associate of my enemy is himself my enemy. It is of little consequence whether any one makes war on me directly, and in his own name, or under the auspices of another. Whatever rights war gives me against my principal enemy, the like it gives me against all his associates: for I derive those rights from the right to security, — from the care of my own defence; and I am equally attacked by the one and the other party. But the question is, to know whom I may lawfully account my enemy's associate, united against me in war.
First, in that class I shall rank all those who are really united in a warlike association with my enemy, and who make a common cause with him, though it is only in the name of that principal enemy that the war is carried on. There is no need of proving this. In the ordinary and open warlike associations, the war is carried on in the name of all the allies, who are equally enemies (§ 80).
In the second place, I account as associates of my enemy, those who assist him in his war without being obliged to it by any treaty. Since they freely and voluntarily declare against me, they, of their own accord, choose to become my enemies. If they go no farther than furnishing a determined succour, allowing some troops to be raised, or advancing money, — and, in other respects, preserve towards me the accustomed relations of friendship and neutrality, — I may overlook that ground of complaint; but still I have a right to call them to account for it. This prudent caution of not always coming to an open rupture with those who give such assistance to our enemy, that we may not force them to join him with all their strength, — this forbearance, I say, has gradually introduced the custom of not looking on such assistance as an act of hostility, especially when it consists only in the permission to enlist volunteers. How often have the Switzers granted levies to France, at the same time that they refused such an indulgence to the house of Austria, though both powers were in alliance with them! How often have they allowed one prince to levy troops in their country, and refused the same permission to his enemy, when they were not in alliance with either! They granted or denied that favour according as they judged it most expedient for themselves; and no power has ever dared to attack them on that account. But if prudence dissuades us from making use of all our right, it does not thereby destroy that right, A cautious nation chooses rather to overlook certain points, than unnecessarily to increase the number of her enemies.
Thirdly, those, who, being united with my enemy by an offensive alliance, actively assist him in the war which he declares against me, — those, I say, concur in the injury intended against me. They show themselves my enemies, and I have a right to treat them as such. Accordingly, the Switzers, whose example we have above quoted, seldom grant troops except for defensive war. To those in the service of France, it has ever been a standing order from their sovereigns, not to carry arms against the empire, or against the states of the house of Austria in Germany. In 1644, the captains of the Neufchatel regiment of Guy, on information that they were destined to serve under Marshal Turenne, in Germany, declared that they would rather die than disobey their sovereign and violate the alliances of the Helvetic body. Since France has been mistress of Alsace, the Switzers who serve in her armies never pass the Rhine to attack the empire. The gallant Daxelhoffer, captain of a Berne company in the French service, consisting of 200 men, and of which his four sons formed the first rank, seeing the general would oblige him to pass the Rhine, broke his espontoon, and marched back with his company to Berne.
Even a defensive alliance made expressly against me, or (which amounts to the same thing) concluded with my enemy during the war, or on the certain prospect of its speedy declaration, is an act of association against me; and if followed by effects, I may look on the party who has contracted it as my enemy. The case is here precisely the same as that of a nation assisting my enemy without being under any obligation to do so, and choosing of her own accord to become my enemy. (See § 97).
A defensive alliance, though of a general nature, and made before any appearance of the present war, produces also the same effect, if it stipulates the assistance of the whole strength of the allies: for in this case it is a real league, or warlike association; and, besides, it were absurd that I should be debarred from making war on a nation who opposes me with all her might, and thus exhausting the source of those succours with which she furnishes my enemy. In what light am I to consider an auxiliary who comes to make war on me at the head of all his forces? It would be mockery on his part, to pretend that he is not my enemy. What more could he do, were he openly to declare himself such? He shows no tenderness for me on the occasion: he only wishes that a tender regard should be paid to himself. And shall I suffer him to preserve his provinces in peace, and secure from all danger, whilst he is doing me all the mischief in his power? No! the law of nature, the law of nations, obliges us to be just: but does not condemn us to be dupes.
But, if a defensive alliance has not been made against me in particular, nor concluded at the time when I was openly preparing for war, or had already begun it, — and if the allies have only stipulated in it that each of them shall furnish a stated succour to him who shall be attacked, — I cannot require that they should neglect to fulfil a solemn treaty, which they had an unquestionable right to conclude without any injury to me. In furnishing my enemy with assistance, they only acquit themselves of a debt: they do me no wrong in discharging it; and, consequently, they afford me no just grounds for making war on them (§ 26). Neither can I say that my safety obliges me to attack them; for I should thereby only increase the number of my enemies, and, instead of a slender succour which they furnish against me, should draw on myself the whole power of those nations. It is, therefore, only the troops which they send as auxiliaries, that I am to consider as enemies. These are actually united with my enemies and fighting against me.
The contrary principles would tend to multiply wars, and spread them beyond all bounds, to the common ruin of nations. It is happy for Europe, that, in this instance, the established custom is in accord with the true principles. A prince seldom presumes to complain of a nation's contributing to the defence of her ally by furnishing him with succours which were promised in former treaties, — in treaties that were not made against that prince in particular. In the last war, the United Provinces long continued to supply the queen of Hungary with subsidies, and even with troops; and France never complained of these proceedings till those troops marched into Alsace to attack the French frontier. Switzerland, in virtue of her alliance with France, furnishes that crown with numerous bodies of troops, and, nevertheless, lives in peace with all Europe.
There is one case, however, which might form an exception to the general rule; it is that of a defensive war which is evidently unjust. For in such case there no longer exists any obligation to assist an ally (§§ 86, 87, 89). If you undertake to do it without necessity, and in violation of your duty, you do an injury to the enemy, and declare against him out of mere wantoness. But this is a case that very rarely occurs between nations. There are few defensive wars without at least some apparent reason to warrant their justice or necessity. Now, on any dubious occasion, each state is sole judge of the justice of her own cause; and the presumption is in favour of your ally (§ 86). Besides, it belongs to you alone to determine what conduct on your part will be conformable to your duties and to your engagements; and consequently nothing less than the most palpable evidence can authorize the enemy of your ally to charge you with supporting an unjust war, contrary to the conviction of your own conscience. In fine, the voluntary law of nations ordains, that, in every case susceptible of doubt, the arms of both parties shall, with regard to external effects, be accounted equally lawful (§ 40).
The real associates of my enemy being my enemies, I have against them the same rights as against the principal enemy (§ 95). And as their own conduct proclaims them my enemies, and they take up arms against me in the first instance, I may make war on them without any declaration: the war being sufficiently declared by their own act. This is especially the case of those who in any manner whatever concur to make an offensive war against me; and it is likewise the case of all those whom we have mentioned in §§ 96, 97, 98, 99, 100.
But it is not thus with those nations which assist my enemy in a defensive war: I cannot consider them as his associates (§ 101). If I am entitled to complain of their furnishing him with succours, this is a new ground of quarrel between me and them. I may expostulate with them, and, on not receiving satisfaction, prosecute my right, and make war on them. But in this case there must be a previous declaration (§ 51). The example of Manlius, who made war on the Galatians for having supplied Antiochus with troops, is not a case in point. Grotius3 censures the Roman general for having begun that war without a declaration. The Galatians, in furnishing troops for an offensive war against the Romans, had declared themselves enemies to Rome. It would appear, indeed, that, on peace being concluded with Antiochus, Manlius ought to have waited for orders from Rome before he attacked the Galatians; and then, if that expedition was considered as a fresh war, he should have not only issued a declaration, but also made a demand of satisfaction, previous to the commencement of hostilities (§ 51). But the treaty with the king of Syria had not yet received its consummation: and it concerned that monarch alone, without making any mention of his adherents. Therefore Manlius undertook the expedition against the Galatians, as a consequence or a remnant of the war with Antiochus, This is what he himself very well observed in his speech to the senate;4 and he even added, that his first measure was to try whether he could bring the Galatians to reasonable terms. Grotius more appositely quotes the example of Ulysses and his followers, — blaming them for having, without any declaration of war, attacked the Ciconians, who had sent succours to Priam during the siege of Troy.5
(150) See supra, n. (149).
1. Book II. chap. xvii.
2. See Wolf, Jus Gentium. §§ 730 and 737.
3. De Jure Belli et Pacis, lib. iii. cap. iii. § 10.
4. Livy, lib. xxxviii.
5. Grotius, ubi supra, not. 3.
NEUTRAL nations are those who, in time of war, do not take any part in the contest, but remain common friends to both parties, without favouring the arms of the one to the prejudice of the other. Here we are to consider the obligations and rights flowing from neutrality.
In order rightly to understand this question, we must avoid confounding what may lawfully be done by a nation that is free from all engagements, with what she may do if she expects to be treated as perfectly neutral in a war. As long as a neutral nation wishes sccurely to enjoy the advantages of her neutrality, she must in all things show a strict impartiality towards the belligerent powers: for, should she favour one of the parties to the prejudice of the other, she cannot complain of being treated by him as an adherent and confederate of his enemy. Her neutrality would be a fraudulent neutrality, of which no nation will consent to be the dupe. It is sometimes suffered to pass unnoticed, merely for want of ability to resent it; we choose to connive at it, rather than excite a more powerful opposition against us. But the present question is, to determine what may lawfully be done, not what prudence may dictate according to circumstances. Let us therefore examine, in what consists that impartiality which a neutral nation ought to observe.
It solely relates to war, and includes two articles, — 1. To give no assistance when there is no obligation to give it, — nor voluntarily to furnish troops, arms, ammunition, or any thing of direct use in war. I do not say, "to give assistance equally," but "to give no assistance:" for it would be absurd that a state should at one and the same time assist two nations at war with each other; and, besides, it would be impossible to do it with equality. The same things, the like number of troops, the like quantity of arms, of stores, &c., furnished in different circumstances, are no longer equivalent succours. 2. In whatever does not relate to war, a neutral and impartial nation must not refuse to one of the parties, on account of his present quarrel, what she grants to the other. This does not deprive her of the liberty to make the advantage of the state still serve as her rule of conduct in her negotiations, her friendly connections, and her commerce. When this reason induces her to give preferences in things which are ever at the free disposal of the possessor, she only makes use of her right, and is not chargeable with partiality. But to refuse any of those things to one of the parties purely because he is at war with the other, and because she wishes to favour the latter, would be departing from the line of strict neutrality.
I have said that a neutral state ought to give no assistance to either of the parties, when "under no obligation to give it." This restriction is necessary. We have already seen, that when a sovereign furnishes the moderate succour due in virtue of a former defensive alliance, he does not become an associate in the war (§ 101). He may, therefore, fulfil his engagement, and yet observe a strict neutrality. Of this, Europe affords frequent instances.
When a war breaks out between two nations, all other states that are not bound by treaties are free to remain neuter; and, if either of the belligerent powers attempted to force them to a junction with him, he would do them an injury, inasmuch as he would be guilty of an infringement on their independency in a very essential point. To themselves alone it belongs to determine whether any reason exists to induce them to join in the contest; and there are two points which claim their consideration: 1. The justice of the cause. If that be evident, injustice is not to be countenanced: on the contrary, it is generous and praiseworthy to succour oppressed innocence, when we possess the ability. If the case be dubious, the other nations may suspend their judgment, and not engage in a foreign quarrel. 2. When convinced which party has justice on his side, they have still to consider whether it be for the advantage of the state to concern themselves in this affair, and to embark in the war.
A nation making war, or preparing to make it, often proposes a treaty of neutrality to a state of which she entertains suspicions. It is prudent to learn betimes what she has to expect, and not to run the risk of a neighbour's suddenly joining with the enemy in the heat of the war. In every case where neutrality is allowable, it is also allowable to bind ourselves to it by treaty.
Sometimes even necessity renders this justifiable. Thus, although it be the duty of all nations to assist oppressed innocence (Book II. § 4), yet, if an unjust conqueror, ready to invade his neighbour's possessions, makes me an offer of neutrality when he is able to crush me, what can I do better than to accept it? I yield to necessity; and my inability discharges me from a natural obligation. The same inability would even excuse me from a perfect obligation contracted by an alliance. The enemy of my ally threatens me with a vast superiority of force: my fate is in his hand: he requires me to renounce the liberty of furnishing any assistance against him. Necessity, and the care of my own safety, absolve me from my engagements. Thus it was that Louis the Fourteenth compelled Victor Amadeus, duke of Savoy, to quit the party of the allies. But, then, the necessity must be very urgent. It is only the cowardly, or the perfidious, who avail themselves of the slightest grounds of alarm, to violate their promises and desert their duty. In the late war, the king of Poland, elector of Saxony, and the king of Sardinia, firmly held out against the unfortunate course of events, and, to their great honour, could not be brought to treat without the concurrence of their allies.
Another reason renders these treaties of neutrality useful, and even necessary. A nation that wishes to secure her own peace, when the flames of war are kindling in her neighbourhood, cannot more successfully attain that object than by concluding treaties with both parties, expressly agreeing what each may do or require in virtue of the neutrality. This is a sure mode to preserve herself in peace, and to obviate all disputes and cavils.
Without such treaties, it is to be feared that disputes will often arise respecting what neutrality does or does not allow. This subject presents many questions which authors have discussed with great heat, and which have given rise to the most dangerous quarrels between nations. Yet the law of nature and of nations has its invariable principles, and affords rules on this head, as well as on the others. Some things also have grown into custom among civilized nations, and are to be conformed to by those who would not incur the reproach of unjustly breaking the peace.1 As to the rules of the natural law of nations, they result from a just combination of the laws of war, with the liberty, the safety, the advantages, the commerce, and the other rights of neutral nations. It is on this principle that we shall lay down the following rules: —
First, no act on the part of a nation, which falls within the exercise of her rights, and is done solely with a view to her own good, without partiality, without a design of favouring one power to the prejudice of another, — no act of that kind, I say, can in general be considered as contrary to neutrality; nor does it become such, except on particular occasions, when it cannot take place without injury to one of the parties, who has then a particular right to oppose it. Thus, the besieger has a right to prohibit access to the place besieged (see § 117 in the sequel). Except in cases of this nature, shall the quarrels of others deprive me of the free exercise of my rights in the pursuit of measures which I judge advantageous to my people? Therefore, when it is the custom of a nation, for the purpose of employing and training her subjects, to permit levies of troops in favour of a particular power to whom she thinks proper to intrust them, — the enemy of that power cannot look upon such permissions as acts of hostility, unless they are given with a view to the invasion of his territories, or the support of an odious and evidently unjust cause. He cannot even demand, as matter of right, that the like favour be granted to him, — because that nation may have reasons for refusing him, which do not hold good with regard to his adversary; and it belongs to that nation alone to judge of what best suits her circumstances. The Switzers, as we have already observed, grant levies of troops to whom they please; and no power has hitherto thought fit to quarrel with them on that head. It must, however, be owned, that, if those levies were considerable, and constituted the principal strength of my enemy, while, without any substantial reason being alleged, I were absolutely refused all levies whatever, — I should have just cause to consider that nation as leagued with my enemy; and, in this case, the care of my own safety would authorise me to treat her as such.
The case is the same with respect to money which a nation may have been accustomed to lend out at interest. If the sovereign, or his subjects, lend money to my enemy on that footing, and refuse it to me because they have not the same confidence in me, this is no breach of neutrality. They lodge their property where they think it safest. If such preference be not founded on good reasons, I may impute it to ill-will against me, or to a predilection for my enemy. Yet if I should make it a pretence for declaring war, both the true principles of the law of nations, and the general custom happily established in Europe, would join in condemning me. While it appears that this nation lends out her money purely for the sake of gaining an interest upon it, she is at liberty to dispose of it according to her own discretion; and I have no right to complain.
But if the loan were evidently granted for the purpose of enabling an enemy to attack me, this would be concurring in the war against me.
If the troops, above alluded to, were furnished to my enemy by the state herself, and at her own expense, or the money in like manner lent by the state, without interest, it would no longer be a doubtful question whether such assistance were incompatible with neutrality.
Further, it may be affirmed on the same principles, that if a nation trades in arms, timber for ship-building, vessels, and warlike stores, — I cannot take it amiss that she sells such things to my enemy, provided she does not refuse to sell them to me also at a reasonable price. She carries on her trade without any design to injure me; and by continuing it in the same manner as if I were not engaged in war, she gives me no just cause of complaint.
In what I have said above, it is supposed that my enemy goes himself to a neutral country to make his purchases. Let us now discuss another case, — that of neutral nations resorting to my enemy's country for commercial purposes. It is certain, that, as they have no part in my quarrel, they are under no obligation to renounce their commerce for the sake of avoiding to supply my enemy with the means of carrying on the war against me. Should they affect to refuse selling me a single article, while at the same time they take pains to convey an abundant supply to my enemy, with an evident intention to favour him, such partial conduct would exclude them from the neutrality they enjoyed. But if they only continue their customary trade, they do not thereby declare themselves against my interest: they only exercise a right which they are under no obligation of sacrificing to me.(152)
Provinces having agreed, in the treaty of Whitehall, signed on the 22d of August, 1689, to notify to all states not at war with France, that they would attack every ship bound to or coming from any port of that kingdom, and that they beforehand declared every such ship to be a lawful prize, — Sweden and Denmark, from whom some ships had been taken, entered into a counter-treaty on the 17th of March, 1693, for the purpose of maintaining their rights and procuring just satisfaction. And the two maritime powers, being convinced that the complaints of the two crowns were well founded, did them justice.2
Commodities particularly useful in war, and the importation of which to an enemy is prohibited, are called contraband goods. Such are arms, ammunition, timber for ship-building, every kind of naval stores, horses, — and even provisions, in certain junctures, when we have hopes of reducing the enemy by famine.3(153)
But, in order to hinder the transportation of contraband goods to an enemy, are we only to stop and seize them, paying the value to the owner, — or have we a right to confiscate them? Barely to stop those goods would in general prove an ineffectual mode, especially at sea, where there is no possibility of entirely cutting off all access to the enemy's harbours. Recourse is therefore had to the expedient of confiscating all contraband goods that we can seize on, in order that the fear of loss may operate as a check on the avidity of gain, and deter the merchants of neutral countries from supplying the enemy with such commodities. And, indeed, it is an object of such high importance to a nation at war to prevent, as far as possible, the enemy's being supplied with such articles as will add to his strength and render him more dangerous, that necessity and the care of her own welfare and safety authorize her to take effectual methods for that purpose, and to declare that all commodities of that nature, destined for the enemy, shall be considered as lawful prize. On this account she notifies to the neutral states her declaration of war (§ 63); whereupon, the letter usually give orders to their subjects to refrain from all contraband commerce with the nations at war, declaring, that if they are captured in carrying on such trade, the sovereign will not protect them. This rule is the point where the general custom of Europe seems at present fixed, after a number of variations as will appear from the note of Grotius, which we have just quoted, and particularly from the ordinances of the kings of France, in the years 1543 and 1584, which only allow the French to seize contraband goods, and to keep them on paying the value. The modern usage is certainly the most agreeable to the mutual duties of nations, and the best calculated to reconcile their respective rights. The nation at war is highly interested in depriving the enemy of all foreign assistance; and this circumstance gives her a right to consider all those, if not absolutely as enemies, at least as people that feel very little scruple to injure her, who carry to her enemy the articles of which he stands in need for the support of the war. She, therefore, punishes them by the confiscation of their goods. Should their sovereign undertake to protect them, such conduct would be tantamount to his furnishing the enemy with those succours himself: — a measure which were undoubtedly inconsistent with neutrality. When a nation, without any other motive than the prospect of gain, is employed in strengthening my enemy, and regardless of the irreparable evil which she may thereby entail upon me,4 she is certainly not my friend, and gives me a right to consider and treat her as an associate of my enemy. In order, therefore, to avoid perpetual subjects of complaint and rupture, it has in perfect conformity to sound principles, been agreed that the belligerent powers may seize and confiscate all contraband goods which neutral persons shall attempt to carry to their enemy, without any complaint from the sovereign of those merchants; as, on the other hand, the power at war does not impute to the neutral sovereigns these practices of their subjects. Care is even taken to settle every particular of this kind in treaties of commerce and navigation.
We cannot prevent the conveyance of contraband goods, without searching neutral vessels that we meet at sea: we have therefore a right to search them. Some powerful nations have indeed, at different times, refused to submit to this search. "After the peace of Vervins, Queen Elizabeth, continuing the war against Spain, requested permission of the king of France to cause all French ships bound for Spain to be searched, in order to discover whether they secretly carried any military stores to that country: but this was refused, as an injury to trade, and a favourable occasion for pillage."5 At present a neutral ship refusing to be searched, would from that proceeding alone be condemned as a lawful prize.(154) But, to avoid inconveniences, oppression, and every other abuse, the manner of the search is settled in the treaties of navigation and commerce. It is the established custom at present to give full credit to the certificates, bills of lading, &c., produced by the master of the ship, unless any fraud appear in them, or there be good reasons for suspecting it.(155)
If we find an enemy's effects on board a neutral ship, we seize them by the rights of war: (156) but we are naturally bound to pay the freight to the master of the vessel, who is not to suffer by such seizure.6(157)
The effects of neutrals, found in an enemy's ships, are to be restored to the owners, against whom there is no right of confiscation; but without any allowance for detainer, decay, &c. The loss sustained by the neutrals on this occasion is an accident to which they exposed themselves by embarking their property in an enemy's ship; and the captor, in exercising the rights of war, is not responsible for the accidents which may thence result, any more than if his cannon kills a neutral passenger who happens unfortunately to be on board an enemy's vessel.(158)
Hitherto we have considered the commerce of neutral nations with the territories of the enemy in general. There is a particular case in which the rights of war extend still farther. All commerce with a besieged town is absolutely prohibited. If I lay siege to a place, or even simply blockade it, I have a right to hinder any one from entering, and to treat as an enemy whoever attempts to enter the place, or carry any thing to the besieged, without my leave; for he opposes my undertaking, and may contribute to the miscarriage of it, and thus involve me in all the misfortunes of an unsuccessful war.
King Demetrius hanged up the master and pilot of a vessel carrying provisions to Athens at a time when he was on the point of reducing that city by famine.7 In the long and bloody war carried on by the United Provinces against Spain for the recovery of their liberties they would not suffer the English to carry goods to Dunkirk, before which the Dutch fleet lay.8
A neutral nation preserves, towards both the belligerent powers, the several relations which nature has instituted between nations. She ought to show herself ready to render them every office of humanity reciprocally due from one nation to another: she ought, in every thing not directly relating to war, to give them all the assistance in her power, and of which they may stand in need. Such assistance, however, must be given with impartiality; that is to say, she must not refuse any thing to one of the parties on account of his being at war with the other (§ 104). But this is no reason why a neutral state, under particular connections of friendship and good neighbourhood with one of the belligerent powers, may not, in every thing that is unconnected with war, grant him all those preferences which are due to friends: much less does she afford any grounds of exception to her conduct, if in commerce, for instance, she continues to allow him such indulgences as have been stipulated in her treaties with him. She ought, therefore, as far as the public welfare will permit, equally to allow the subjects of both parties to visit her territories on business, and there to purchase provisions, horses, and, in general, every thing they stand in need of, — unless she has by a treaty of neutrality promised to refuse to both parties such articles as are used in war. Amidst all the wars which disturb Europe, the Switzers preserve their territories in a state of neutrality. Every nation indiscriminately is allowed free access for the purchase of provisions, if the country has a surplus, and for that of horses, ammunition, and arms.
An innocent passage is due to all nations with whom a state is at peace (Book II. § 123); and this duty extends to troops as well as to individuals. But it rests with the sovereign of the country to judge whether the passage be innocent; and it is very difficult for that of an army to be entirely so. In the late wars of Italy the territories of the republic of Venice and those of the pope sustained very great damage by the passage of armies, and often became the theatre of the war.
Since, therefore, the passage of troops, and especially that of a whole army, is by no means a matter of indifference, he who desires to march his troops through a neutral country, must apply for the sovereign's permission. To enter his territory without his consent, is a violation of his rights of sovereignty and supreme dominion, by virtue of which, that country is not to be disposed of for any use whatever, without his express or tacit permission. Now a tacit permission for the entrance of a body of troops is not to be presumed, since their entrance may be productive of the most serious consequences.
If the neutral sovereign has good reasons for refusing a passage, he is not obliged to grant it, — the passage in that case being no longer innocent.
In all doubtful cases we must submit to the judgment of the proprietor respecting the innocence of the use we desire to make of things belonging to another (Book II. §§ 128, 130), and must acquiesce in his refusal, even though we think it unjust. If the refusal be evidently unjust, — if the use, and, in the case now before us, the passage be unquestionably innocent, — a nation may do herself justice, and take by force what is unjustly denied to her. But we have already observed, that it is very difficult for the passage of an army to be absolutely innocent, and much more so for the innocence to be very evident. So various are the evils it may occasion, and the dangers that may attend it, — so complicated are they in their nature, and so numerous are the circumstances with which they are connected, — that, to foresee and provide for every thing, is next to impossible. Besides, self-interest has so powerful an influence on the judgments of men, that if he who requires the passage is to be the judge of its innocence, he will admit none of the reasons brought against it; and thus a door is opened to continual quarrels and hostilities. The tranquillity, therefore, and the common safety of nations require that each should be mistress of her own territory, and at liberty to refuse every foreign army an entrance, when she has not departed from her natural liberties in that respect, by treaties. From this rule, however, let us except those very uncommon cases which admit of the most evident demonstration that the passage required is wholly unattended with inconvenience or danger. If, on such an occasion, a passage be forced, he who forces it will not be so much blamed as the nation that has indiscreetly subjected herself to this violence. Another case, which carries its own exception on the very face of it, and admits not of the smallest doubt, is that of extreme necessity. Urgent and absolute necessity suspends all the rights of property (Book II. §§ 119, 123): and if the proprietor be not under the same pressure of necessity as you, it is allowable for you, even against his will, to make use of what belongs to him. When, therefore, an army find themselves exposed to imminent destruction, or unable to return to their own country, unless they pass through neutral territories, they have a right to pass in spite of the sovereign, and to force their way, sword in hand. But they ought first to request a passage, to offer securities, and pay for whatever damages they may occasion. Such was the mode pursued by the Greeks on their return from Asia, under the conduct of Agesilaus.9
Extreme necessity may even authorize the temporary seizure of a neutral town, and the pulling a garrison therein, with a view to cover ourselves from the enemy, or to prevent the execution of his designs against that town, when the sovereign is not able to defend it. But when the danger is over, we must immediately restore the place, and pay all the charges, inconveniences, and damages, which we have occasioned by seizing it.
When the passage is not of absolute necessity, the bare danger which attends the admission of a powerful army into our territory, may authorize us to refuse them permission to enter. We may have reason to apprehend that they will be tempted to take possession of the country, or at least to act as masters while they are in it, and to live at discretion. Let it not be said, with Grotius,10 that he who requires the passage is not to be deprived of his right on account of our unjust fears, A probable fear, founded on good reasons, gives us a right to avoid whatever may realize it; and the conduct of nations affords but too just grounds for the fear in question. Besides, the right of passage is not a perfect right, unless in a case of urgent necessity, or when we have the most perfect evidence that the passage is innocent.
But, in the preceding section, I suppose it impracticable to obtain sufficient security which shall leave us no cause to apprehend any hostile attempts or violent proceedings on the part of those who ask permission to pass. If any such security can be oblained, (and the safest one is, to allow them to pass only in small bodies, and upon delivering up their arms, as has been sometimes required),11 the reason arising from fear no longer exists. But those who wish to pass should consent to give every reasonable security required of them, and consequently submit to pass by divisions and deliver up their arms, if the passage be denied them on any other terms. The choice of the security they are to give does not rest with them. Hostages, or a bond, would often prove very slender securities. Of what advantage will it be to me to hold hostages from one who will render himself master over me? And as to a bond, it is of very little avail against a prince of much superior power.
But, is it always incumbent on us to give every security a nation may require, when we wish to pass through her territories? — In the first place, we are to make a distinction between the different reasons that may exist for our passing through the country; and we are next to consider the manners of the people whose permission we ask. If the passage be not essentially necessary, and can be obtained only on suspicious or disagreeable conditions, we must relinquish all idea of it, as in the case of a refusal (§ 122). But, if necessity authorizes me to pass, the conditions on which the passage will be granted may be accepted or rejected, according to the manners of the people I am treating with. Suppose I am to cross the country of a barbarous, savage, and perfidious nation, — shall I leave myself at their discretion, by giving up my arms and causing my troops to march in divisions? No one, I presume, will condemn me to take so dangerous a step. Since necessity authorizes me to pass, a kind of new necessity arises for my passing in such a posture as will secure me from any ambuscade or violence. I will offer every security that can be given without foolishly exposing myself; and if the offer is rejected, I must be guided by necessity and prudence, — and, let me add, by the most scrupulous moderation, in order to avoid exceeding the bounds of that right which I derive from necessity.
If the neutral state grants or refuses a passage to one of the parties at war, she ought, in like manner to grant or refuse it to the other, unless a change of circumstances affords her substantial reasons for acting otherwise. Without such reasons, to grant to one party what she refuses to the other, would be a partial distinction, and a departure from the line of strict neutrality.
When I have no reason to refuse a passage, the party against whom it is granted has no right to complain of my conduct, much less to make it the ground of a hostile attack upon me, since I have done no more than what the law of nations enjoins (§ 119). Neither has he any right to require that I should deny the passage; for he must not pretend to hinder me from doing what I think agreeable to my duty. And even on those occasions when I might with justice refuse permission to pass, I am at liberty to abstain from the exertion of my right. But especially when I should be obliged to support my refusal by the sword, who will take upon him to complain of my having permitted the war to be carried into his country, rather than draw it on myself? No sovereign can require that I should take up arms in his favour, unless obliged to it by treaty. But nations, more attentive to their own interests than to the observance of strict justice, are often very loud on this pretended subject of complaint. In war, especially, they stick at no measures; and if by their threats they can induce a neighbouring state to refuse a passage to their enemy, the generality of their rulers consider this conduct only as a stroke of good policy.
A powerful state will despise these unjust menaces: firm and unshaken in what she thinks due to justice and to her own reputation, she will not suffer herself to be diverted by the fear of a groundless resentment: she will not even bear the menace. But a weak nation, unable to support her rights, will be under a necessity of consulting her own safety; and this important concern will authorize her to refuse a passage, which would expose her to dangers too powerful for her to repel.
Another fear may also warrant her in refusing a passage, namely, that of involving her country in the disorders and calamities of war. For, even if the party against whom a passage is requested, should observe such moderation as not to employ menaces for the purpose of intimidating the neutral nation into a refusal, he will hardly fail to demand a passage for himself also: he will march to meet his enemy; and thus the neutral country will become the theatre of war. The infinite evils of such a situation are an unexceptionable reason for refusing the passage. In all these cases, he who attempts to force a passage, does an injury to the neutral nation, and gives her most just cause to unite her arms with those of his adversary. The Switzers, in their alliances with France, have promised not to grant a passage to her enemies. They ever refuse it to all sovereigns at war, in order to secure their frontiers from that calamity; and they take care that their territory shall be respected. But they grant a passage to recruits, who march in small bodies, and without arms.
The grant of permission to pass includes a grant of every thing which is naturally connected with the passage of troops, and without which the passage would be impracticable; such as the liberty of carrying with them whatever may be necessary for an army, — that of exercising military discipline on the soldiers and officers, and of purchasing, at a fair price, every thing the army may want, unless, through fear of scarcity, a particular exception has been made, to oblige them to carry with them their own provisions.
He who grants the passage is bound to render it safe, as far as depends on him. Good faith requires this; and to act otherwise would be ensnaring those to whom the passage is granted.
For this reason, and because foreigners can do nothing in a territory against the will of the sovereign, it is unlawful to attack an enemy in a neutral country, or to commit in it any other act of hostility. The Dutch East-India fleet having put into Bergen, in Norway, in 1666, to avoid the English, the British admiral had the temerity to attack them there. But the governor of Bergen fired on the assailants; and the court of Denmark complained, though perhaps too faintly, of an attempt so injurious to her rights and dignity.12(160)
To conduct prisoners, to convey spoil to a place of safety, are acts of war, consequently not to be done in a neutral country; and whoever should permit them, would depart from the line of neutrality, by favouring one of the parties. But I here speak of prisoners and spoil not yet perfectly in the enemy's power, and whose capture is, as it were, not yet fully completed. A flying party, for instance, cannot make use of a neighbouring and neutral country as a place of deposit to secure their prisoners and spoil. To permit this, would be giving countenance and support to their hostilities. When the capture is completed, and the booty absolutely in the enemy's power, no inquiry is made how he came by such effects, and he may dispose of them in a neutral country. A privateer carries his prize into a neutral port, and there freely sells it; but he cannot land his prisoners there, for the purpose of keeping them in confinement, because the detention and custody of prisoners of war is a continuation of hostilities.
On the other hand, it is certain that, if my neighbour affords a retreat to my enemies, when defeated and too much weakened to escape me, and allows them time to recover, and watch a favourable opportunity of making a second attack on my territories, this conduct, so prejudicial to my safety and interests, would be incompatible with neutrality. If, therefore, my enemies, on suffering a discomfiture, retreat into his country, although charity will not allow him to refuse them permission to pass in security, he is bound to make them continue their march beyond his frontiers as soon as possible, and not suffer them to remain in his territories on the watch for a convenient opportunity to attack me anew; otherwise he gives me a right to enter his country in pursuit of them. Such treatment is often experienced by nations that are unable to command respect. Their territories soon become the theatre of war; armies march, encamp, and fight in it, as in a country open to all comers.
Troops to whom a passage is granted are not to occasion the least damage in the country; they are to keep to the public roads, and not enter the possessions of private persons, — to observe the most exact discipline, and punctually pay for everything with which the inhabitants supply them. And if the licentiousness of the soldiers, or the necessity of certain operations, as encamping or intrenching, has caused any damage, their commander or their sovereign is bound to make reparation. All this requires no proof. What right have an army to injure a country, when the most they could require was an innocent passage through it?
There can be no reason why the neutral state should not stipulate for a sum of money, as an indemnification for certain damages which it would be difficult to estimate, and for the inconveniences naturally resulting from the passage of an army. But it would be scandalous to sell the very grant of passage, — nay, even unjust, if the passage be attended with no damage, since, in that case, the permission is due. As to the rest, the sovereign of the country is to take care that the compensation be paid to the parties who have suffered the damage; for no right authorizes him to reserve for his own use what is given for their indemnification. It is, indeed, too often the case, that the weak sustain the loss, and the powerful receive the compensation.
Finally, as we are not bound to grant even an innocent passage, except for just causes, we may refuse it to him who requires it for a war that is evidently unjust, — as, for instance, to invade a country without any reason, or even colourable pretext. Thus Julius Cæsar denied a passage to the Helvetii, who were quitting their country in order to conquer a better. I conceive, indeed, that policy had a greater share in his refusal than the love of justice; but, in short, justice authorised him on that occasion to obey the dictates or prudence. A sovereign who is in a condition to refuse without fear, should doubtless refuse in the case we now speak of. But if it would be dangerous for him to give a refusal, he is not obliged to draw down the impending evil on his own head for the sake of averting it from that of his neighbour: nay, rashly to hazard the quiet and welfare of his people, would be a very great breach of his duty.
(151) The modern illustrating decisions upon neutrals, and neutrality, will be found collected in 1 Chitty's Commercial Law, 43-64, 383-490; Id. Index, tit. Neutrals, and in Chitty's L. Nat. 14, 34-54, 153; and Id. Index, tit. Neutrals. — C.
1. The following is an instance: — It was determined by the Dutch, that, on a vessel's entering a neutral port, after having taken any of the enemies of her nation prisoners on the high seas, she should be obliged to set those prisoners at liberty, because they were then fallen into the power of a nation that was in neutrality with the belligerent parties. — The same rule had been observed by England in the war between Spain and the United Provinces.
(152) It must be a continuance only of such customary trade. See Home on Captures, 215-233; De Tastet v. Taylor, 4 Taunt. 238; Bell v. Reid, 1 Maule & Selw. 727; and an able speech of Lord Erskine, 8th March, 1808, upon the orders in Council; 10 Cobbett's Parl. Deb. 935. It has even been holden that a British-born subject, while domiciled in a neutral country, may legally trade from that country with a state at war with this country. Bell v. Reid, 1 Maule & Selwyn, 727. — C.
2. See other instances in Grotius, De Jure Belli et Pacis, lib. iii. cap. i. § 5, not. 6.
3. The Pensionary De Witt, in a letter of January 14, 1654, acknowledges that it would be contrary to the law of nations to prevent neutrals from carrying corn to an enemy's country; but he says that we may lawfully prevent them from supplying the enemy with cordage and other materials for the riffing and equipment of ships of war.
In 1597, queen Elizabeth would not allow the Poles and Danes to furnish Spain with provisions, much less with arms, alleging that, "according to the rules of war, it is lawful to reduce an enemy even by famine, with the view of obliging him to sue for peace," The United Provinces, finding it necessary to observe a greater degree of circumspection, did not prevent neutral nations from carrying on every kind of commerce with Spain. It is true, indeed, that, while their own subjects sold both arms and provisions to the Spaniards, they could not with propriety have attempted to forbid neutral nations to carry on a similar trade. (Grotius, His. of the Disturbances in the Low Countries, book vi.) Nevertheless, in 1646, the United Provinces published an edict prohibiting their own subjects in general, and even neutral nations, to carry either provisions or any other merchandise to Spain, because the Spaniards, "after having, under the appearance of commerce, allured foreign vessels to their ports, detained them, and made use of them as ships of war." And for this reason, the same edict declared that "the confederates, when blocking up their enemies' ports, would seize upon every vessel they saw steering towards those places." — Ibid. book xv. p. 572 — Ed. A.D. 1797.
(153) What are contraband goods, see 1 Chitty's Comml. L. 444-449, and Chitty's L. Nat. 119-128. — C.
4. In our time, the king of Spain prohibited all Hamburgh ships from entering his harbours, because that city had engaged to furnish the Algerines with military stores; and thus he obliged the Hamburghers to cancel their treaty with the Barbarians. — Ed. A.D. 1797.
5. Grotius, ubi supra.
(154) As to the right of visiting and searching neutral ships, see the celebrated letter of the Duke of Newcastle to the Prussian Secretary, A.D. 1752; 1 Collect. Jurid. 138; and Halliday's Life of Lord Mansfield; Elements of General History, vol. iii. p. 222, Marshall on Insurance, book i. ch. 8, sect. 5; Garrels v. Kensington, 8 Term Rep. 230; Lord Erskine's Speech upon Orders in council, 8 March 1808; 10 Cobbett's Parl. Deb. 955; Baring upon Orders in Council, p. 102. Clearly at this day the right of search exists practically as well as theoretically.
The right of search, and of the consequence of resistance, and of the papers and documents that ought to be found on board the neutral vessels, are most clearly established by the best modern decision; see Barker v. Blakes, 9 East Rep. 283, and numerous other cases, collected in 1 Chitty's Commercial Law, 482-489; Chitty's L. Nat. 190-199. The international law upon the subject will be found admirably summed up by Sir Wm. Scott, in his Judgment in the case of the Maria, 1 Rob. Rep. 346, and 1 Edward's Rep. 208, confirming the authority of Vattel, and on which he thus concludes: "I stand with confidence upon all fair principles of reason, — upon the distinct authority of Vattel, and upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, a deliberate and continued resistance of search, on the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequences of confiscation." And see Dispatch, 3 Rob, Rep. 278; Elsabe, 4 Rob. Rep. 408; Pennsylvania, 1 Acton's Rep. 33; Saint Juan Baptista, 5 Rob. Rep. 33; Maria, 1 Rob. Rep. 340; Mentor. 1 Edward, 2668; Catherina Elisabeth, 5 Rob. Rep. 232. See the modern French view of the right of visitation and search, Cours de Droits Public, tom. i. p. 84. Paris: A.D. 1830. — C. {And the American, The Eleanor, 2 Wheat. Rep. 345; The U. states v. LaJeune Eugenie, 2 Mass. Rep. 409; The Marianna Flora, 3 Mass. Rep. 116; Maley v. Shattuck, 3 Cranch, 458.}
(155) As to papers and documents that ought to be on board, see 1 Chitty's Commercial Law, 487-489, and Chitty's L. Nat. 196-199, and authorities there collected. The owner of the neutral vessel has no remedy for loss of voyage, or other injury occasioned by the reasonable exercise of the right of search (infra note), but he may insure against the risk; Barker v. Blakes, 9 East. 283. — C. — {See Maley v. Shattuck, 3 Cranch, 458.}
(156) Particular states have relaxed the rigour of this rule, and, by express treaty, granted immunity, by establishing a maxim, "Free ships, free goods;" see instances, 5 Rob. Rep. 52; 6 Rob. Rep. 24, 41-358. — C.
6. {See the rule as recognised by the United States. The Nereide, 9 Cranch, 110.} — "I have obtained," said the ambassador Boreel, in a letter to the Grand Pensionary, De Witt, "the abrogation of that pretended French law, that enemies' property involves in confiscation the property of friends; so that, if henceforward any effects belonging to the enemies of France be found in a free Dutch vessel, those effects alone shall be liable to confiscation; and the vessel shall be released, together with all the other property onboard. But I find it impossible to obtain the object of the twenty-fourth article of my instructions, which says, that the immunity of the vessel shall extend to the cargo, even if enemies' property," De Witt's Letters and Negotiations, vol i. p. 80, — Such a law as the latter would be more natural than the former. — Edit. A.D. 1797.
(157) (Schwartz v. The Ins. Co. of North America, 3 Wash. C. C. Rep. 117.) — But, in these cases, the freight to be paid is not necessarily to be measured by the terms of the charter party, 1 Molloy, 1-18; and Twilling Ruet, 5 Rob. Rep. 82. — C.
(158) 1 Chitty's Commercial Law, 440; Grotius, b. iii. c. vi. § vi; Marshall on Insurance, b. i. c, viii. § v. The loss of voyage and damage may be insured against; Barker v. Blakes, 9 East, Rep. 283. — C.
(159) As to violation of blockade in general, see the modern decisions, 1 Chitty's Commercial Law, 449 and 460-492; Chitty's L. Nat. 129-144, and 259; and see, as to the distinction between a military and commercial blockade, and their effect, 1 Acton's Rep. 128. On a question of violation of blockade, Sir W. Scott said, "three things must be proved — 1st, the existence of an actual blockade; 2dly, the knowledge of the party supposed to have offended; and 3dly, some act of violation, either by going in or coming out with a cargo laden after the commencement of the blockade." In case of Betsy, 1 Rob. Rep. 92, and Nancy, 1 Acton's Rep. 59. — C. — {Fitzsimmons v. The Newport Ins. Co., 4 Cranch, 185.}
7. Plutarch, in Demetrio.
8. Grotius, ubi supra.
9. Plutarch's Life of Agesilaus.
10. Book ii. chap. ii. § 13, note 5.
11. By the Eleans, and the ancient inhabitants of Cologne. See Grotius, ibid.
12. The author of the "Present State of Denmark," written in English, pretends that the Danes had engaged to deliver up the Dutch fleet, but that some seasonable presents, made to the court of Copenhagen, saved it. Chap. x.
(160) At present, by the general law of nations, the whole space of the sea, within cannon-shot of the coast, in considered as making a part of the territory; and, for that reason, a vessel taken under the cannon of a neutral fortress, is not a lawful prize. Ante, book i. chap. xxxiii. s. 289, p. 129; Marten's L.N. b. viii. chap. vi. s. 6; and see 1 Molloy, b. i. chap. iii. s. 7; and chap. i. s. 16. (The Ann. 1 Gall. Rep. 62.) And Professor Marten observes, that when two vessels, the enemies of each other, meet in a neutral port, or where one pursues the other into such port, not only must they refrain from all hostilities while they remain there, but should one set sail, the other must not sail in less than twenty-four hours after Marten's L. Nat. b. viii. c. vi. s. 6. Sir W. Scott, in the Twee Gebroeders. 3 Rob. Rep. 162-336; and the Anna, 5 Rob. Rep. 373, observes, that no proximate acts of war are in any manner to be allowed to originate on neutral ground, and explains and elucidates what preparatory acts of warfare there ought, or ought not, to be tolerated; and see 1 Chitty's Com L. 441 to 444. So we have seen that even a sentence of condemnation of ship or goods as prize cannot legally lake place in a neutral country. Ante, and Flad Oyen, 1 Rob. Rep. 115; 8 T.R. 270; Atcheson's Rep. 8, note 9; and see Haveloch v. Pockwood, Atcheson's Rep. 33, 43. — C
WHAT we have hitherto said, concerns the right of making war: — let us now proceed to those rights which are to be respected during the war itself, and to the rules which nations should reciprocally observe, even when deciding their differences by arms. Let us begin by laying down the rights of a nation engaged in a just war; let us see what she is allowed to do to her enemy. The whole is to be deduced from one single principle, — from the object of a just war: for, when the end is lawful, he who has a right to pursue that end, has of course, a right to employ all the means which are necessary for its attainment. The end of a just war is to avenge or prevent injury (§ 28) — that is to say, to obtain justice by force, when not obtainable by any other method, — to compel an unjust adversary to repair an injury already done, or give us securities against any wrong with which we are threatened by him. As soon, therefore, as we have declared war, we have a right to do against the enemy whatever we find necessary for the attainment of that end, — for the purpose of bringing him to reason, and obtaining justice and security from him.
The lawfulness of the end does not give us a real right to any thing further than barely the means necessary for the attainment of that end. Whatever we do beyond that, is reprobated by the law of nature, is faulty, and condemnable at the tribunal of conscience. Hence it is that the right to such or such acts of hostility varies according to circumstances. What is just and perfectly innocent in war, in one particular situation, is not always so on other occasions. Right goes hand in hand with necessity and the exigency of the case, but never exceeds them.
But as it is very difficult always to form a precise judgment of what the present case requires, and as, moreover, it belongs to each nation to judge of what her own particular situation authorizes her to do (Prelim. § 16) — it becomes absolutely necessary that nations should reciprocally conform to general rules on this subject. Accordingly, whenever it is certain and evident that such a measure, such an act of hostility, is necessary, in general, for overpowering the enemy's resistance, and attaining the end of a lawful war, — that measure, thus viewed in a general light, is, by the law of nations, deemed lawful in war, and consistent with propriety, although he who unnecessarily adopts it, when he might attain his end by gentler methods, is not innocent before God and his own conscience. In this lies the difference between what is just, equitable, irreprehensible in war, and what is only allowed between nations, and suffered to pass with impunity. The sovereign who would preserve a pure conscience, and punctually discharge the duties of humanity, ought never to lose sight of what we already have more than once observed, — that nature gives him no right to make war on his fellow-men, except in cases of necessity, and as a remedy, ever disagreeable, though often necessary, against obstinate injustice or violence. If his mind is duly impressed with this great truth, he will never extend the application of the remedy beyond its due limits, and will be very careful not to render it more harsh in its operation, and more fatal to mankind, than is requisite for his own security and the defence of his rights.
Since the object of a just war is to repress injustice and violence, and forcibly to compel him who is deaf to the voice of justice, we have a right to put in practice, against the enemy, every measure that is necessary in order to weaken him, and disable him from resisting us and supporting his injustice; and we may choose such methods as are the most efficacious and best calculated to attain the end in view, provided they be not of an odious kind, nor unjustifiable in themselves, and prohibited by the law of nature.
The enemy who attacks me unjustly, gives me an undoubted right to repel his violence; and he who takes up arms to oppose me when I demand only my right, becomes himself the real aggressor by his unjust resistance: he is the first author of the violence, and obliges me to employ forcible means in order to secure myself against the wrong which he intends to do me either in my person or my property. If the forcible means I employ produce such effect as even to take away his life, he alone must bear the whole blame of that misfortune: for, if I were obliged to submit to the wrong rather than hurt him, good men would soon become the prey of the wicked. Such is the origin of the right to kill our enemies in a just war. When we find gentler methods insufficient to conquer their resistance and bring them to terms, we have a right to put them to death. Under the name of enemies, as we have already shown, are to be comprehended, not only the first author of the war, but likewise all those who join him, and who fight in support of his cause.
But the very manner in which the right to kill our enemies is proved, points out the limits of that right. On an enemy's submitting and laying down his arms, we cannot with justice take away his life. Thus, in a battle, quarter is to be given to those who lay down their arms; and, in a siege, a garrison offering to capitulate are never to be refused their lives. The humanity with which most nations in Europe carry on their wars at present cannot be too much commended. If, sometimes, in the heat of action, the soldier refuses to give quarter, it is always contrary to the inclination of the officers, who eagerly interpose to save the lives of such enemies as have laid down their arms.1
There is, however, one case in which we may refuse to spare the life of an enemy who surrenders, or to allow any capitulation to a town reduced to the last extremity. It is, when that enemy has been guilty of some enormous breach of the law of nations, and particularly when he has violated the laws of war. This refusal of quarter is no natural consequence of the war, but a punishment for his crime, — a punishment which the injured party has a right to inflict. But, in order that it be justly inflicted, it must fall on the guilty. When we are at war with a savage nation, who observe no rules, and never give quarter, we may punish them in the persons of any of their people whom we take, (these belonging to the number of the guilty.) and endeavour, by this rigorous proceeding, to force them to respect the laws of humanity. But, wherever severity is not absolutely necessary, clemency becomes a duty. Corinth was utterly destroyed for having violated the law of nations in the person of the Roman ambassadors. That severity, however, was reprobated by Cicero and other great men. He who has even the most just cause to punish a sovereign with whom he is in enmity, will ever incur the reproach of cruelty, if he causes the punishment to fall on his innocent subjects. There are other methods of chastising the sovereign, — such as depriving him of some of his rights, taking from him towns and provinces. The evil which thence results to the nation at large, is the consequence of that participation which cannot possibly be avoided by those who unite in political society.
This leads us to speak of a kind of retaliation sometimes practised in war, under the name of reprisals. If the hostile general has, without any just reason, caused some prisoners to be hanged, we hang an equal number of his people, and of the same rank, — notifying to him that we will continue thus to retaliate, for the purpose of obliging him to observe the laws of war. It is a dreadful extremity thus to condemn a prisoner to atone, by a miserable death, for his general's crime; and if we had previously promised to spare the life of that prisoner, we cannot, without injustice, make him the subject of our reprisals.2 Nevertheless, as a prince, or his general, has a right to sacrifice his enemy's lives to his own safety and that of his men, — it appears that, if he has to do with an inhuman enemy, who frequently commits such enormities, he is authorized to refuse quarter to some of the prisoners he takes, and to treat them as his people have been treated.3 But Scipio's generosity is rather to be imitated; — that great man, having reduced some Spanish princes, who had revolted against the Romans, declared to them that, on a breach of their faith, he would not call the innocent hostages to an account, but themselves; and that he would not avenge it on an unarmed enemy, but on those who should be found in arms.4 Alexander the Great, having cause of complaint against Darius for some malpractices, sent him word, that if he continued to make war in such a manner, he would proceed to every extremity against him, and give him no quarter.5 It is thus an enemy who violates the laws of war is to be checked, and not by causing the penalty due to his crime to fall on innocent victims.
How could it be conceived, in an enlightened age, that it is lawful to punish with death a governor who has defended his town to the last extremity, or who, in a weak place, has had the courage to hold out against a royal army? In the last century, this notion still prevailed; it was looked upon as one of the laws of war, and is not, even at present, totally exploded. What an idea! to punish a brave man for having performed his duty! Very different were the principles or Alexander the Great, when he gave orders for sparing some Milesians, on account of their courage and fidelity.6 "As Phyton was led to execution, by order of Dionysius the tyrant, for having obstinately defended the town of Rhegium, of which he was governor, he cried out, that he was unjustly condemned to die for having refused to betray the town, and that heaven would soon avenge his death." Diodorus Siculus terms this "an unjust punishment."7 It is vain to object, that an obstinate defence, especially in a weak place, against a royal army, only causes a fruitless effusion of blood. Such a defence may save the state, by delaying the enemy some days longer; and besides, courage supplies the defects of the fortifications.8 The chevalier Bayard having thrown himself into Mezieres, defended it with his usual intrepidity,9 and proved that a brave man is sometimes capable of saving a place which another would not think tenable. The history of the famous siege of Malta is another instance how far men of spirit may defend themselves, when thoroughly determined. How many places have surrendered, which might still have arrested the enemy's progress for a considerable time, obliged him to consume his strength and waste the remainder of the campaign, and even finally saved themselves, by a better-supported and more vigorous defence! In the last war, whilst the strongest places in the Netherlands opened their gates in a few days, the valiant general Leutrum was seen to defend Coni against the utmost efforts of two powerful armies, — to hold out, in so indifferent a post, forty days from the opening of the trenches, — and, finally, to save the town, and, together with it, all Piemont. If it be urged, that, by threatening a commandant with death, you may shorten a bloody siege, spare your troops, and make a valuable saving of time, — my answer is, that a brave man will despise your menace, or, incensed by such ignominious treatment, will sell his life as dearly as he can, — will bury himself under the ruins of his fort, and make you pay for your injustice. But, whatever advantage you might promise yourself from an unlawful proceeding, that will not warrant you in the use of it. The menace of an unjust punishment is unjust in itself; it is an insult and an injury. But, above all, it would be horrible and barbarous to put it in execution; and, if you allow that the threatened consequences must not be realized, the threat is vain and ridiculous. Just and honourable means may be employed to dissuade a governor from ineffectually persevering to the last extremity; and such is the present practice of all prudent and humane generals. At a proper stage of the business, they summon a governor to surrender; they offer him honourable and advantageous terms of capitulation, — accompanied by a threat, that, if he delays too long, he will only be admitted to surrender as a prisoner of war, and at discretion. If he persists, and is at length forced to surrender at discretion, — they may then treat both himself and his troops with all the severity of the law of war. But that law can never extend so far as to give a right to take away the life of an enemy who lays down his arms (§ 140), unless he has been guilty of some crime against the conqueror (§ 141).
Resistance carried to extremity does not become punishable in a subaltern, except on those occasions only when it is evidently fruitless. It is then obstinacy, and not firmness or valour: — true valor has always a reasonable object in view. Let us, for, instance, suppose that a state has entirely submitted to the conqueror's arms, except one single fortress, — that no succour is to be expected from without, — no neighbour, no ally, concerns himself about saving the remainder of that conquered state: — on such an occasion, the governor is to be made acquainted with the situation of affairs, and summoned to surrender; and he may be threatened with death in case of his persisting in a defence which is absolutely fruitless, and which can only lend to the effusion of human blood.10 Should this make no impression on him, he deserves to suffer the punishment with which he has been justly threatened. I suppose the justice of the war to be problematical, and that it is not an insupportable oppression which he opposes: for if this governor maintains a cause that is evidently just, — if he fights to save his country from slavery, — his misfortune will be pitied; and every man of spirit will applaud him for gallantly persevering to the last extremity, and determining to die free.
Fugitives and deserters, found by the victor among his enemies, are guilty of a crime against him; and he has undoubtedly a right to put them to death. But they are not properly considered as enemies: they are rather perfidious citizens traitors to their country; and their enlistment with the enemy cannot obliterate that character, or exempt them from the punishment they have deserved. At present, however, desertion being unhappily too common, the number of the delinquents renders it in some measure necessary to show clemency; and, in capitulations, it is usual to indulge the evacuating garrison with a certain number of covered wagons, in which they save the deserters.
Women, children, feeble old men, and sick persons, come under the description of enemies (§§ 70-72); and we have certain rights over them, inasmuch as they belong to the nation with whom we are at war, and as, between nation and nation, all rights and pretensions affect the body of the society, together with all its members (Book II. §§ s81, 82-344). But these are enemies who make no resistance; and consequently we have no right to maltreat their persons or use any violence against them, much less to take away their lives (§ 140). This is so plain a maxim of justice and humanity, that at present every nation in the least degree civilized, acquiesces in it. If, sometimes, the furious and ungovernable soldier carries his brutality so far as to violate female chastity, or to massacre women, children, and old men, the officers lament those excesses; they exert their utmost efforts to put a stop to them; and a prudent and humane general even punishes them whenever he can. But, if the women wish to be spared altogether, they must confine themselves to the occupations peculiar to their own sex, and not meddle with those of men, by taking up arms. Accordingly, the military law of the Switzers, which forbids the soldier to maltreat women, formally excepts those females who have committed any acts of hostility.11
The like may be said of the public ministers of religion, of men of letters, and other persons whose mode of life is very remote from military affairs: — not that these people, nor even the ministers of the altar, are, necessarily, and by virtue of their functions, invested with any character of inviolability, or that the civil law can confer it on them with respect to the enemy: but, as they do not use force or violence to oppose him, they do not give him a right to use it against them. Among the ancient Romans, the priests carried arms: Julius Cæsar himself was sovereign pontiff: — and among the Christians, it has been no rare thing to see prelates, bishops, and cardinals buckle on their armor, and take the command of armies. From the instant of their doing so, they subjected themselves to the common fate of military men. While dealing out their blows in the field of battle, they did not, it is to be presumed, lay claim to inviolability.
Formerly, every one capable of carrying arms became a soldier when his nation was at war, and especially when it was attacked. Grotius, however,12 produces instances of several nations and eminent commanders,13 who spared the peasantry, in consideration of the immediate usefulness of their labours.14 At present, war is carried on by regular troops: the people, the peasants, the citizens, take no part in it, and generally have nothing to fear from the sword of the enemy. Provided the inhabitants submit to him who is master of the country, pay the contributions imposed, and refrain from all hostilities, they live in as perfect safety as if they were friends: they even continue in possession of what belongs to them: the country people come freely to the camp to sell their provisions, and are protected, as far as possible, from the calamities of war. A laudable custom, truly worthy of those nations who value themselves on their humanity, and advantageous even to the enemy who acts with such moderation. By protecting the unarmed inhabitants, keeping the soldiery under strict discipline, and preserving the country, a general procures an easy subsistence for his army, and avoids many evils and dangers. If he has any reason to mistrust the peasantry and the inhabitants of the towns, he has a right to disarm them, and to require hostages from them: and those who wish to avoid the calamities of war, must submit to the laws which the enemy thinks proper to impose on them.
But all those enemies thus subdued or disarmed, whom the principles of humanity oblige him to spare, — all those persons belonging to the opposite party, (even the women and children,) he may lawfully secure and make prisoners, either with a view to prevent them from taking up arms again, or for the purpose of weakening the enemy (§ 138), or, finally, in hopes that, by getting into his power some woman or child for whom the sovereign has an affection, he may induce him to accede to equitable conditions of peace, for the sake of redeeming those valuable pledges. At present, indeed, this last mentioned expedient is seldom put in practice by the polished nations of Europe: women and children are suffered to enjoy perfect security, and allowed permission to withdraw wherever they please. But this moderation, this politeness, though undoubtedly commendable, is not in itself absolutely obligatory; and if a general thinks fit to supersede it, he cannot be justly accused of violating the laws of war. He is at liberty to adopt such measures, in this respect, as he thinks most conducive to the success of his affairs. If without reason, and from mere caprice, he refuses to indulge women with this liberty, he will be taxed with harshness and brutality, — he will be censured for not conforming to a custom established by humanity: but he may have good reasons for disregarding, in this particular, the rules of politeness, and even the suggestions of pity. If there are hopes of reducing by famine a strong place, of which it is very important to gain possession, the useless mouths are not permitted to come out. And in this there is nothing which is not authorized by the laws of war. Some great men, however, have, on occasions of this nature, carried their compassion so far as to postpone their interests to the motions of humanity. We have already mentioned, in another place, how Henry the Great acted during the siege of Paris. To such a noble example let us add that of Titus at the siege of Jerusalem: at first he was inclined to drive back into the city great numbers of starving wretches, who came out of it; but he could not withstand the compassion which such a sight raised in him; and he suffered the sentiments of humanity and generosity to prevail over the maxims of war.
As soon as your enemy has laid down his arms and surrendered his person, you have no longer any right over his life (§ 140), unless he should give you such right by some new attempt, or had before committed against you a crime deserving death (§ 141). It was therefore a dreadful error of antiquity, a most unjust and savage claim, to assume a right of putting prisoners of war to death, and even by the hand of the executioner. More just and humane principles, however, have long since been adopted. Charles I., king of Naples, having defeated and taken prisoner Conradin, his competitor, caused him to be publicly beheaded at Naples, together with Frederic of Austria, his fellow-prisoner. This barbarity raised a universal horror; and Peter III., king of Arragon, reproached Charles with it as a detestable crime, and till then unheard of among Christian princes.15 The case, however, was that of a dangerous rival, who contended with him for the throne. But supposing even the claims of that rival were unjust, Charles might have kept him in prison till he had renounced them, and given security for his future behaviour.
Prisoners may be secured; and for this purpose they may be put into confinement, and even fettered, if there be reason to apprehend that they will rise on their captors, or make their escape. But they are not to be treated harshly, unless personally guilty of some crime against him who has them in his power. In this case, he is at liberty to punish them: otherwise, he should remember that they are men, and unfortunate.16 A man of exalted soul no longer feels any emotions but those of compassion towards a conquered enemy who has submitted to his arms. Let us, in this particular, bestow on the European nations the praise to which they are justly entitled. Prisoners of war are seldom ill-treated among them. We extol the English and French; we feel our bosoms glow with love for them, when we hear the accounts of the treatment which prisoners of war, on both sides, have experienced from those generous nations. And what is more, by a custom which equally displays the honour and humanity of the Europeans, an officer, taken prisoner in war, is released on his parole, and enjoys the comfort of passing the time of his captivity in his own country, in the midst of his family; and the party who have thus released him rest as perfectly sure of him as if they had him confined in irons.
Formerly, a question of an embarrassing nature might have been proposed. When we have so great a number of prisoners that we find it impossible to feed them, or to keep them with safety, have we a right to put them to death? or shall we send them back to the enemy, — thus increasing his strength, and exposing ourselves to the hazard of being overpowered by him on a subsequent occasion? At present, the case is attended with no difficulty. Such prisoners are dismissed on their parole, — bound by promise not to carry arms for a certain time, or during the continuance of the war. And as every commander necessarily has a power of agreeing to the conditions on which the enemy admits his surrender, the engagements entered into by him for saving his life or his liberty, with that of his men, are valid, as being made within the limits of his powers (§§ 19, &c.); and his sovereign cannot annul them. Of this, many instances occurred during the last war: — several Dutch garrisons submitted to the condition of not serving against France or her allies for one or two years: a body of French troops being invested in Lintz, were by capitulation sent back across the Rhine, under a restriction not to carry arms against the queen of Hungary for a stated time; and the sovereigns of those troops respected the engagements formed by them. But conventions of this kind have their limits, which consist in not infringing the rights of the sovereign over his subjects. Thus the enemy, in releasing prisoners, may impose on them the condition of not carrying arms against him till the conclusion of the war; since he might justly keep them in confinement till that period: but he cannot require that they shall for ever renounce the liberty of fighting for their country; because, on the termination of the war, he has no longer any reason for detaining them; and they, on their part, cannot enter into an engagement absolutely inconsistent with their character of citizens or subjects. If their country abandons them, they become free in that respect, and have in their turn a right to renounce their country.
But if we have to do with a nation that is at once savage, perfidious, and formidable, shall we send her back a number of soldiers who will perhaps enable her to destroy us? — When our own safety is incompatible with that of an enemy — even of an enemy who has submitted — the question admits not of a doubt. But to justify us in coolly and deliberately putting to death a great number of prisoners, the following conditions are indispensably necessary: — 1. That no promise have been made to spare their lives; and, 2. That we be perfectly assured that our own safety demands such a sacrifice. If it is at all consistent with prudence either to trust to their parole, or to disregard their perfidy, a generous enemy will rather listen to the voice of humanity than to that of a timid circumspection. Charles XII., being encumbered with his prisoners after the battle of Narva, only disarmed them and set them at liberty: but his enemy, still impressed with the apprehensions which his warlike and formidable opponents had excited in his mind, sent into Siberia all the prisoners he took at Pultowa, The Swedish hero confided too much in his own generosity; the sagacious monarch of Russia united, perhaps, too great a degree of severity with his prudence; but necessity furnishes an apology for severity, or rather throws a veil over it altogether. When Admiral Anson look the rich Acapulco galleon, near Manilla, he found that the prisoners outnumbered his whole ship's company: he was therefore under a necessity of confining them in the hold, where they suffered cruel distress.17 But had he exposed himself to the risk of being carried away a prisoner, with his prize and his own ship together, would the humanity of his conduct have justified the imprudence of it? Henry V., king of England, after his victory in the battle of Agincourt, was reduced, or thought himself reduced, to the cruel necessity of sacrificing the prisoners to his own safety. "In this universal rout," says Father Daniel, "a fresh misfortune happened, which cost the lives of a great number of French. A remainder of their van was retreating in some order, and many of the stragglers was retreating in some order, and many of the stragglers rallied and joined it. The king of England, observing their motions from an eminence, supposed it was their intention to return to the charge. At the same moment, he received information of an attack being made on his camp, where the baggage was deposited. In fact, some noblemen of Picardy, having armed about six hundred peasants, had fallen upon the English camp. Thus circumstanced, that prince, apprehensive of some disastrous reverse, despatched his aides-de-camp to the different divisions of the army, with orders for putting all the prisoners to the sword, lest, in case of a renewal of the battle, the care of guarding them should prove an impediment to his soldiers, or the prisoners should escape and join their countrymen. The order was immediately carried into execution, and all the prisoners were put to the sword."18 Nothing short of the greatest necessity can justify so terrible an execution; and the general whose situation requires it, is greatly to be pitied.
Is it lawful to condemn prisoners of war to slavery? Yes, in cases which give a right to kill them, — when they have rendered themselves personally guilty of some crime deserving of death. The ancients used to sell their prisoners of war for slaves. They, indeed, thought they had a right to put them to death. In every circumstance, when I cannot innocently take away my prisoner's life, I have no right to make him a slave. If I spare his life, and condemn him to a state so contrary to the nature of man, I still continue with him the state of war. He lies under no obligation to me: for, what is life without freedom? If any one counts life a favour when the grant of it is attended with chains, — be it so: let him accept the kindness, submit to the destiny which awaits him, and fulfil the duties annexed to it. But he must apply to some other writer to teach him those duties: there have been authors enough who have amply treated of them. I shall dwell no longer on the subject; and, indeed, that disgrace to humanity is happily banished from Europe.
Prisoners of war, then, are detained, either to prevent their returning to join the enemy again, or with a view to obtain from their sovereign a just satisfaction, as the price of their liberty. There is no obligation to release those who are detained with the latter view, till after satisfaction is obtained. As to the former, whoever makes a just war has a right, if he thinks proper, to detain his prisoners till the end of the war: and whenever he releases them, he may justly require a ransom, either as a compensation at the conclusion of a peace, or, if during the continuance of the war, for the purpose of at least weakening his enemy's finances at the same time that he restores him a number of soldiers. The European nations, who are ever to be commended for their care in alleviating the evils of war, have, with regard to prisoners, introduced humane and salutary customs. They are exchanged or ransomed, even during the war: and this point is generally settled beforehand by cartel. However, if a nation finds a considerable advantage in leaving her soldiers prisoners with the enemy during the war rather than exchanging them, she may certainly, unless bound by cartel, act in that respect as is most conducive to her interest. Such would be the case of a state abounding in men, and at war with a nation more formidable by the courage than the number of her soldiers. It would have ill suited the interests of the czar, Peter the Great, to restore his prisoners to the Swedes for an equal number of Russians.
But the state is bound to procure, at her own expense, the release other citizens and soldiers who are prisoners of war, as soon as she has the means of accomplishing it, and can do it without danger. It was only by acting in her service and supporting her cause that they were involved in their present misfortune. For the same reason, it is her duty to provide for their support during the time of their captivity. Formerly, prisoners of war were obliged to redeem themselves: but then the ransom of all those whom the officers or soldiers might take, was the perquisite of the individual captors. The modern custom is more agreeable to reason and justice. If prisoners cannot be delivered during the course of the war, at least their liberty must, if possible, make an article in the treaty of peace. This is a care which the state owes to those who have exposed themselves in her defence. It must, nevertheless, be allowed, that a nation may, after the example of the Romans, and for the purpose of stimulating her soldiers to the most vigorous resistance, enact a law to prohibit prisoners of war from ever being ransomed. When this is agreed to by the whole society, nobody can complain. But such a law is very severe, and could scarce suit any but those ambitious heroes who were determined on sacrificing every thing in order to make themselves master of the world.
Since the present chapter treats of the rights which war gives us over the person of the enemy, this is the proper place to discuss a celebrated question, on which authors have been much divided, — and that is, whether we may lawfully employ all sorts of means to take away an enemy's life? whether we be justifiable in procuring his death by assassination or poison? Some writers have asserted, that, where we have a right to take away life, the manner is indifferent. A strange maxim! but happily exploded by the bare ideas of honour, confused and indefinite as they are. In civil society, I have a right to punish a slanderer, — to cause my property to be restored by him who unjustly detains it: but shall the manner be indifferent? Nations may do themselves justice sword in hand, when otherwise refused to them: shall it be indifferent to human society that they employ odious means capable of spreading desolation over the whole face of the earth, and against which the most just and equitable of sovereigns, even though supported by the majority of other princes, cannot guard himself?
But, in order to discuss this question on solid grounds, assassination is by all means to be distinguished from surprises, which are, doubtless, very allowable in war. Should a resolute soldier steal into the enemy's camp by night, — should he penetrate to the general's tent, and stab him, — in such conduct there is nothing contrary to the natural laws of war, — nothing even but what is perfectly commendable in a just and necessary war. Mutius Scævola has been praised by all the great men of antiquity; and Persenna himself, whom he intended to kill, could not but commend his courage.19 Pepin, father of Charlemagne, having crossed the Rhine with one of his guards, went and killed his enemy in his chamber.20 If any one has absolutely condemned such bold strokes, his censure only proceeded from a desire to flatter those among the great, who would wish to leave all the dangerous part of war to the soldiery and inferior officers. It is true, indeed, that the agents in such attempts are usually punished with some painful death, But that is, because the prince or general who is thus attacked exercises his own rights in turn, — has an eye to his own safety, and endeavours, by the dread of a cruel punishment, to deter his enemies from attacking him otherwise than by open force. He may proportion his severity towards an enemy according as his own safety requires. Indeed, it would be more commendable on both sides to renounce every kind of hostility which lays the enemy under a necessity of employing cruel punishments, in order to secure himself against it. This might be made an established custom, — a conventional law of war. The generous warriors of the present age dislike such attempts, and would never willingly undertake them, except on those extraordinary occasions, when they become necessary to the very safety and being of their country. As to the six hundred Lacedæmonians, who, under the conduct of Leonidas, broke into the enemy's camp, and made their way directly to the Persian monarch's tent,21 their expedition was justifiable by the common rules of war, and did not authorize the king to treat them more rigorously than any other enemies. In order to defeat all such attempts, it is sufficient to keep a strict watch; and it would be unjust to have recourse to cruel punishments for that purpose: accordingly, such punishments are reserved for those only who gain admittance by stealth alone, or in very small number, and especially if under cover of a disguise.
I give, then, the name of assassination to a treacherous murder, whether the perpetrators of the deed be subjects of the party whom we cause to be assassinated, or of our own sovereign, — or that it be executed by the hand of any other emissary, introducing himself as a supplicant, a refugee, a deserter, or, in fine, as a stranger; and such an attempt I say, is infamous and execrable, both in him who executes and in him who commands it. Why do we judge an act to be criminal, and contrary to the law of nature, but because such act is pernicious to human society, and that the practice of it would be destructive to mankind? Now, what could be more terrible than the custom of hiring a traitor to assassinate our enemy? Besides, were such a liberty once introduced, the purest virtue, the friendship of the majority of the reigning sovereigns, would no longer be sufficient to insure a prince's safety. Had Titus lived in the time of the old man of the mountain, —; though the happiness of mankind centered in him, — though punctual in the observance of peace and equity, he was respected and adored by all potentates, — yet, the very first time that the prince of Assassins might have thought proper to quarrel with him, that universal affection would have proved insufficient to save him; and mankind would have lost their "darling." Let it not here be replied, that it is only in favour of the cause of justice that such extraordinary measures are allowable: for all parties, in their wars, maintain that they have justice on their side. Whoever, by setting the example, contributes to the introduction of so destructive a practice, declares himself the enemy of mankind, and deserves the execration of all ages.22 The assassination of William, prince of Orange, was regarded with universal detestation, though the Spaniards had declared that prince a rebel. And the same nation denied, as an atrocious calumny, the charge of having had the least concern in that of Henry the Great, who was preparing for a war against them, which might have shaken their monarchy to its very foundations.
In treacherously administering poison there is something still more odious than in assassination: it would be more difficult to guard against the consequences of such an attempt; and the practice would be more dreadful; accordingly, it has been more generally detested. Of this Grotius has accumulated many instances.23 The consuls Caius Fabricius and Quintus Æmilius rejected with horror the proposal of Pyrrhus's physician, who made an offer of poisoning his master; they even cautioned that prince to be on his guard against the traitor, — haughtily adding: "It is not to ingratiate ourselves with you that we give this information, but to avoid the obloquy to which your death would expose us."24 And they justly observe, in the same letter, that it is for the common interest of all nations not to set such examples.25 It was a maxim of the Roman Senate, that war was to be carried on with arms, and not with poison.26 Even under Tiberius, the proposal of the prince of the Catti was rejected, who offered to destroy Arminius, if poison were sent him for that purpose: and he received for answer, that "it was the practice of the Romans to take vengeance on their enemies by open force, and not by treachery and secret machinations;"27
Tiberius thus making it his glory to imitate the virtue of the ancient Roman commanders. This instance is the more remarkable, as Arminius had treacherously cut off Varus, together with three Roman legions. The senate, and even Tiberius himself, thought it unlawful to adopt the use of poison, even against a perfidious enemy, and as a kind of retaliation or reprisals.
Assassination and poisoning are therefore contrary to the laws of war, and equally condemned by the law of nature and the consent of all civilized nations. The sovereign who has recourse to such execrable means should be regarded as the enemy of the human race; and the common safety of mankind calls on all nations to unite against him and join their forces to punish him. His conduct particularly authorizes the enemy, whom he has attacked by such odious means, to refuse him any quarter. Alexander declared, that "he was determined to proceed to the utmost extremities against Darius, and no longer to consider him as a fair enemy, but as a poisoner and an assassin."28
The interest and safety of men in high command require, that, so far from countenancing the introduction of such practices, they should use all possible care to prevent it, It was wisely said by Eumenes, that "he did not think any general wished to obtain a victory in such manner as should set a pernicious example which might recoil on himself."29 And it was on the same principle that Alexander formed his judgment of Bessus, who had assassinated Darius.30
The use of poisoned weapons may be excused or defended with a little more plausibility. At least, there is no treachery in the case, no clandestine machination. But the practice is nevertheless prohibited by the law of nature, which does not allow us to multiply the evils of war beyond all bounds. You must of course strike your enemy in order to get the better of his efforts: but if he is once disabled, is it necessary that he should inevitably die of his wounds? Besides, if you poison your weapons, the enemy will follow your example; and thus, without gaining any advantage on your side for the decision of the contest, you have only added to the cruelty and calamities of war. It is necessity alone that can at all justify nations in making war: they ought universally to abstain from every thing that has a tendency to render it more destructive: it is even a duty incumbent on them to oppose such practices. It is therefore with good reason, and in conformity to their duty, that civilized nations have classed among the laws of war the maxim which prohibits the poisoning of weapons;31 and they are all warranted by their common safety to repress and punish the first who should offer to break through that law.
A still more general unanimity prevails in condemning the practice of poisoning waters, wells, and springs, because (say some authors) we may thereby destroy innocent persons, — we may destroy other people as well as our enemies. This is indeed an additional reason: but it is not the only nor even the true one; for we do not scruple to fire on an enemy's ship, although there be neutral passengers on board. But though poison is not to be used, it is very allowable to divert the water, — to cut off the springs, — or by any other means to render them useless, that the enemy may be reduced to surrender.32 This is a milder way than that of arms.(163)
I cannot conclude this subject, of what we have a right to do against the person of the enemy, without speaking a few words concerning the dispositions we ought to preserve towards him. They may already be deduced from what I have hitherto said, and especially in the first chapter of the second book. Let us never forget that our enemies are men. Though reduced to the disagreeable necessity of prosecuting our right by force of arms, let us not divest ourselves of that charity which connects us with all mankind. Thus shall we courageously defend our country's rights without violating those of human nature.33 Let our valour preserve itself from every stain of cruelty, and the lustre of victory will not be tarnished by inhuman and brutal actions. Marius and Attila are now detested; whereas we cannot forbear admiring and loving Cæsar; his generosity and clemency almost tempt us to overlook the injustice of his undertaking. Moderation and generosity redound more to the glory of a victor than his courage; they are more certain marks of an exalted soul. Besides the honour which infallibly accompanies those virtues, humanity towards an enemy has been often attended with immediate and real advantages. Leopold, duke of Austria, besieging Soleure, in the year 1318, threw a bridge over the Aar, and posted on it a large body of troops. Soon after, the river having, by an extraordinary swell of its waters, carried away the bridge together with those who were stationed on it, — the besieged hastened to the relief of those unfortunate men, and saved the greatest part of them. Leopold, relenting at this act of generosity, raised the siege and made peace with the city.34 The duke of Cumberland, after his victory at Dettingen,35 appears to me still greater than in the heat of battle. As he was under the surgeon's hands, a French officer, much more dangerously wounded than himself, being brought that way, the duke immediately ordered his surgeon to quit him, and assist that wounded enemy. If men in exalted stations did but conceive how great a degree of affection and respect attends such actions, they would study to imitate them, even when not prompted to the practice by native elevation of sentiment. At present, the European nations generally carry on their wars with great moderation and generosity. These dispositions have given rise to several customs which are highly commendable, and frequently carried to the extreme of politeness.36 Sometimes refreshments are sent to the governor of a besieged town; and it is usual to avoid firing on the king's or the general's quarters. We are sure to gain by this moderation, when we have to do with a generous enemy; but we are not bound to observe it any further than can be done without injuring the cause we defend; and it is clear that a prudent general will, in this respect, regulate his conduct by the circumstances of the case, by an attention to the safety of the army and of the state, by the magnitude of the danger, and by the character and behaviour of the enemy. Should a weak nation or town be attacked by a furious conqueror who threatens to destroy it, are the defenders to forbear firing on his quarters: Far from it: that is the very place to which, if possible, every shot should be directed.
Formerly, he who killed the king or general of the enemy was commended and greatly rewarded: the honours annexed the spoila opima are well known. Nothing was more natural: in former times, the belligerent nations had, almost in every instance, their safety and very existence at stake; and the death of the leader often put an end to the war. In our days, a soldier would not dare to boast of having killed the enemy's king. Thus sovereigns tacitly agree to secure their own persons. It must be owned, that, in a war which is carried on with no great animosity, and where the safety and regard for regal majesty is perfectly commendable, and even consonant to the reciprocal duties of nations. In such a war, to take away the life of the enemy's sovereign, when it might be spared, is perhaps doing that nation a greater degree of harm than is necessary for bringing the contest to a happy issue. But it is not one of the laws of war that we should on every occasion spare the person of the hostile king: we are not bound to observe that moderation except where we have a fair opportunity of making him prisoner.37
(161) See, in general, the Rights of War; Grotius, ch. vi.; and 1 Chitty's Commercial Law, 377 to 437; and Chitty's Law of Nations, per tot. — C.
1. From several passages of Grotius's History of the Disturbances in the low Countries, it appears that the war between the Dutch and Spaniards was carried on with unrelenting cruelty at sea, although the parties had agreed to observe the usual rules of moderation on land. Intelligence being received by the confederate states, that the Spaniards had, by the advice of Spinola, embarked at Lisbon a body of troops destined for Flanders, they dispatched a squadron to wait for them in the strait of Calais, with orders to drown without mercy every soldier that was taken; and the order was punctually executed. — Book xiv. p. 550. — Edit A.D. 1797.
(162) As to reprisals and letters of marque in general, see ante b??ri. ch. xviii. § 334. — C. [Yes, b??ri is in the original.]
2. In the French; we here find (apparently very much out of place) a verbatim repetition of the long note which has already appeared in page 286 — Edit. A.D. 1797.
3. Lysander, having captured the Athenian fleet, put the prisoners to death, on account of various cruelties practised by the Athenians during the course of the war, but principally on account of the barbarous resolution which they were known to have adopted, of cutting off the right hand or every prisoner, in case of victory declaring on their side. He spared Adeimantus alone, who had opposed that infamous resolution. Xenoph. Hist. Græc. lib. ii. cap. i. — Edit. A.D. 1797.
4. Neque se in obsides innoxios, sed in ipsos, si defecerint, sæviturum; nec ab inermi, sed ab armato hoste, pœnas expetiturum. — Tit. Liv. lib. xxviii.
5. Quint. Curt. lib. iv. cap. i. and ii.
6. Arrian. de Exped. Alexand. lib. i. cap. xx.
7. Lib. xiv. cap. cxiii., quoted by Grotius, lib. iii. cap. ii. § xvi. n. v.
8. The false maxim which formerly prevailed on this subject, is noticed in the relation of the battle of Musselburgh (De Thou, vol. i. p. 287). "The general (the duke of Somerset), the regent of England, was on this occasion much admired for his clemency, which induced him to spare the lives of the besieged (the garrison of a castle in Scotland.) notwithstanding that ancient maxim in war, which declares that a weak garrison forfeit all claim to mercy on the part of the conqueror, when, with more courage than prudence, they obstinately persevere in defending an ill-fortified place against a royal army and when, refusing to accept of reasonable conditions offered to them, they undertake to arrest the progress of a power which they are unable to resist." — Pursuant to that maxim, Cæsar answered the Aduatici that he would spare their town, if they surrendered before the battering-ram touched their walls; and the duke of Alva strongly blamed prosper Colonna for having granted terms of capitulation to the garrison of a castle, who had refused to treat of a surrender until the cannon had been employed against them. — Edit. A.D. 1797.
9. See his life.
10. But it is not lawful to employ menaces of every kind in order to induce the governor or commandant of a town to surrender. There are some, against which nature revolts with horror. Louis the Eleventh, being engaged in the siege of St. Omer, and incensed at the long resistance he experienced, informed the governor, Philip, son of Antony, the Bastard of Burgundy, that if he did not surrender the place, his father (who was a prisoner in Louis's hands) should be put to death in his sight. Philip replied that he would feel the most poignant regret to lose his father, but that his honour was still dearer to him, and that he was too well acquainted with the king's disposition, to apprehend that he would disgrace himself by the perpetration of so barbarous a deed. — Hist. of Louis XI. book viii — Edit. A.D. 1797.
11. See Simler, de Repub. Helvet.
12. Book iii. ch. xi. § xi.
13. Cyrus, Belisarius, &c.
14. Cyrus proposed to the king of Assyria, that both parties should reciprocally spare the cultivators of the soil, and make war only against those who appeared in arms: — and the proposal was agreed to. Xenoph. Cyrop. lib. v. cap. 4.
15. Epist. Pet. Arrag. apud Petr. de Vineis.
16. In 1593, the council of the Netherlands, at the persuasion of the count de Fuentes, resolved no longer to observe towards the United Provinces that moderation which humanity renders so necessary in war. They gave orders for putting to death every man who should be made prisoner, and, under the same penalty, prohibited the payment of any contributions to the enemy. But the complaints of the nobility and clergy, and still more the murmurs of the military, who saw themselves exposed to an infamous death in case of falling into the enemy's hands, obliged the Spaniards to re-establish those indispensable usages, which in the words of Virgil {Ain. x. 532}, are called belli commercia, — the ransom or exchange of prisoners, and the payment of contributions to avert pillage and devastation. The ransom of each prisoner was then settled at a month's pay. — Grotius, Hist. of Netherlands, book iii.
17. See Anson's Voyage round the World. {P. 382, 383. Lond, Ed. 4 to 1756.}
18. Hist. of France, Reign of Charles VI.
19. See Livy, lib, ii. cap. xii, — Cicero, pro P. Sextio. Valer, Max. lib. iii. cap. iii. — Plutarch, in Poplicol.
20. Grotius, lib. iii. cap. 4, § xv ii. n. i.
21. Justin, lib. ii. cap, xi.
22. See the dialogue between Julius Cæsar and Cicero, in the Mélanges de Litérature et Poésies. — Farrudge, sultan of Egypt, sent to Timur-bec an ambassador, accompanied by two villains, who were to assassinate that conqueror during the audience. This infamous plot being discovered, "It is not," said Timur, "the maxim of kings to put ambassadors to death: but as to this wretch, who under the sacred barb of religion, is a monster of perfidy and corruption, it would be a crime to suffer him and his accomplices to live." Pursuant, therefore, to that passage of the Koran which says that "treachery falls on the traitor's own head," he ordered him to be dispatched with the same poniard with which he had intended to perpetrate the abominable deed. The body of the traitor was then committed to the flames, as an example to others. The two assassins were only condemned to suffer the amputation of their noses and ears; Timur contenting himself with this punishment, and forbearing to put them to death, because he wished to send them back with a letter to the sultan. — {Petis de la Croix.} Hist, of Timur-bec, book v. chap. xxiv. {p. 313 Ed. Edif. 1723}
23. Book iii. chap. iv. § xv.
24. Oude gar tauta se chiritti menuomen, all d pos me toson pathos emin diabolen enegke — Plut. in Pyrr.
25. Sed communis exempli et fidei ergo visum est, uti te salvum velimus; ut esset, quem armis vincere possemus. — Aun Gell. Noct Attic lib. iii. cap. viii.
26. Armis belia, non venenis, geri debere. — Valer. Maxim. lib. vi. ch. v. num. i.
27. Non fraude, neque occultis, sed palam, et armatum, — populum Romanum hostes suos ulcisci. — Tacit. Annal. lib. ii. cap. lxxxviii.
28. Quint. Curt. lib, iv. cap. xi. num. xviii.
29. Nec Antigonum, nec quemquam ducum, sic velle vincere, ut ipse in se exemplum pessimum statuat. — Justin. lib. xiv. cap. i. num. xii.
30. Quem quidem [Bessum] cruci adfixum videre festino, omnibus regibus gentibusque fidel, quam violavit, meritas pœnas solventum. — Q. Curt. lib. vi. ch. iii. num. xiv.
31. Grotius, book iii. ch. iv. § xvi.
32. Grotius, ibid. § xvii.
(163) But, in modern warfare, whatever may be the necessary practice in starving the besieged fortress into a surrender, we have instanced the English supplying the French army with medicine, to prevent the progress of a destructive disorder, although, If a petty policy were allowed to prevail, such an indulgence of humane feeling might appear injudicious (ante). — C.
33. The laws of justice and equity are not to be less respected even in time of war. The following I quote as a remarkable instance; — Alcibiades, at the head of an Athenian army, was engaged in the siege of Byzantium, then occupied by a Lacedæmonian garrison; and finding that he could not reduce the city by force, he gained over some of the inhabitants, who put him in possession of it. One of the persons concerned in this transaction was Anaxilaus, a citizen of Byzantium, who, being afterwards brought to trial for it at Lacedæmon, pleaded in his defence, that, in surrendering the city, he had not acted through ill-will to the Lacedæmonians, or under the influence of a bribe, but with a view to save the women and children, whom he saw perishing with famine; for Clearchus, who commanded the garrison, had given to the soldiers all the corn that was found in the city. The Lacedæmonians, with a noble regard to justice, and such as seldom prevails on similar occasions, acquitted the culprit, observing that he had not betrayed, but saved the city, and particularly attending to the circumstance of his being a Byzantine, not a Lacedæmonian. — Xenoph. His. Græc. lib. i. cap. iii. — Edit. A.D. 1797.
34. Watteville's Hist. of the Helvetic Confederacy, vol. i. p. 126.
35. In the year 1743.
36. Timur-bec made war on Joseph Sofy, king of Carezem, and subdued his kingdom. During the course of the war, that great man proved himself to be possessed of all that moderation and politeness which is thought peculiar to our modern warriors. Some melons being brought to him whilst he was besieging Joseph in the city of Eskiskus, he resolved to send a part of them to his enemy, thinking it would be a breach of civility not to share those new fruits with that prince when so near him: and accordingly he ordered them to be put into a gold basin, and carried to him. The king of Carezem received this instance of politeness in a brutal manner; He ordered the melons to be thrown into the fossé, and gave the basin to the city gate-keeper. — La Croix. His. of Timur-bec, book v. ch. xxvii. — Edit. A.D. 1797.
37. On this subject, let us notice a trait of Charles XII. of Sweden, in which sound reason and the most exalted courage are equally conspicuous. That prince, being engaged in the siege of Thorn in Poland, and frequently walking round the city, was easily distinguished by the cannoneers, who regularly fired upon him as soon as they saw him make his appearance. The principal officers of his army, greatly alarmed at their sovereign's danger, wished to have information sent to the governor, that, if the practice was continued, no quarter should be granted either to him or to the garrison. But the Swedish monarch would never permit such a step to be taken, telling his officers that the governor and the Saxon cannoneers were perfectly right in acting as they did, that it was himself who made the attack upon them, and that the war would be at an end if they could kill him; whereas they would reap very little advantage even from killing the principal officers of his army. — Histoire du Nord, p. 26. Edit. A.D. 1797.
A STATE taking up arms in a just cause has a double right against her enemy, — 1. a right to obtain possession of her property withheld by the enemy; to which must be added the expenses incurred in the pursuit of that object, the charges of the war, and the reparation of damages: for, were she obliged to bear those expenses and losses, she would not fully recover her property, or obtain her due. 2. She has a right to weaken her enemy, in order to render him incapable of supporting his unjust violence (§ 138) — a right to deprive him of the means of resistance. Hence, as from their source, originate all the rights which war gives us over things belonging to the enemy. I speak of ordinary cases, and of what particularly relates to the enemy's property. On certain occasions, the right of punishing him produces new rights over the things which belong to him, as it also does over his person. These we shall presently consider.
We have a right to deprive our enemy of his possessions, of every thing which may augment his strength and enable him to make war. This every one endeavours to accomplish in the manner most suitable to him. Whenever we have an opportunity, we seize on the enemy's property, and convert it to our own use: and thus, besides diminishing the enemy's power, we augment our own, and obtain at least a partial indemnification or equivalent, either for what constitutes the subject of the war, or for the expenses and losses incurred in its prosecution: — in a word, we do ourselves justice.
The right to security often authorizes us to punish injustice or violence. It is an additional plea for depriving an enemy of some part of his possessions. This manner of chastising a nation is more humane than making the penalty to fall on the persons of the citizens. With that view, things of value may be taken from her, such as rights, cities, provinces. But all wars do not afford just grounds for inflicting punishment. A nation that has with upright intentions supported a bad cause, and observed moderation in the prosecution of it, is entitled rather to compassion than resentment from a generous conqueror: and in a doubtful cause we are to suppose that the enemy sincerely thinks himself in the right. (Prelim. § 21); Book III. § 40.) The only circumstance, therefore, which gives an enemy the right to punish his adversaries, is their evident injustice, unsupported even by any plausible pretext, or some heinous outrage in their proceedings: and, on every occasion, he ought to confine the punishment to what his own security and the safety of nations require. As far as consistent with prudence, it is glorious to obey the voice of clemency: that amiable virtue seldom fails of being more useful to the party who exerts it, than inflexible rigour. The clemency of Henry the Great was of singular advantage in co-operating with his valour, when that good prince found himself compelled to conquer his own kingdom. Those who would have continued his enemies if only subdued by arms, were won by his goodness, and became affectionate subjects.
In fine, we seize on the enemy's property, his towns, his provinces, in order to bring him to reasonable conditions, and compel him to accept of an equitable and solid peace. Thus much more is taken from him than he owes, more than is claimed of him: but this is done with a design of restoring the surplus by a treaty of peace. The king of France1 was, in the last war, known to declare that he aimed at nothing for himself: and by the treaty of Aix-la-Chapelle, he actually restored all his conquests.
As the towns and lands taken from the enemy are called conquests, all movable property taken from him comes under the denomination of booty. This booty naturally belongs to the sovereign making war, no less than the conquests; for he alone has such claims against the hostile nation as warrant him to seize on her property and convert it to his own use.(165) His soldiers, and even his auxiliaries, are only instruments which he employs in asserting his right. He maintains and pays them, Whatever they do is in his name, and for him. Thus, there is no difficulty, even with regard to the auxiliaries. If they are not associates in the war, it is not carried on for their benefit; and they have no more right to the booty than to the conquests. But the sovereign may grant the troops what share of the booty he pleases. At present most nations allow them whatever they can make on certain occasions when the general allows of plundering, — such as the spoil of enemies fallen in the field of battle, the pillage of a camp which has been forced, and sometimes that of a town taken by assault. In several services, the soldier has also the property of what he can take from the enemy's troops when he is out on a party, or in a detachment, excepting artillery, military stores, magazines, and convoys of provisions and forage, which are applied to the wants and use of the army. This custom being once admitted in an army, it would be injustice to exclude the auxiliaries from the right allowed to the national troops. Among the Romans, the soldier was obliged to bring in to the public stock all the booty he had taken. This the general caused to be sold; and, after distributing a part of the produce among the soldiers, according to rank, he consigned the residue to the public treasury.
Instead of the custom of pillaging the open country and defenceless places, another mode has been substituted, which is at once more humane, and more advantageous to the belligerent sovereign — I mean that of contributions. Whoever carries on a just war has a right to make the enemy's country contribute to the support of his army, and towards defraying all the charges of the war. Thus, he obtains a part of what is due to him; and the enemy's subjects, by consenting to pay the sum demanded, have their property secured from pillage, and the country is preserved. But a general who wishes to enjoy an unsullied reputation, must be moderate in his demand of contributions, and proportion them to the abilities of those on whom they are imposed. An excess in this point does not escape the reproach of cruelty and inhumanity: although there is not so great an appearance of ferocity in it as in ravage and destruction, it displays a greater degree of avarice or greediness. Instances of humanity and moderation cannot be too often quoted. A very commendable one occurred during those long wars which France carried on in the reign of Louis XIV. The sovereigns, seeing it was their mutual interest as well as duty to prevent ravage, made it a practice, on the commencement of hostilities, to enter into treaties for regulating the contributions on a supportable footing: they determined the extent of hostile territory in which each might demand contributions, the amount of them, and the manner in which the parties sent to levy them were to behave. In these treaties it was expressed, that no body of men under a certain number should advance into the enemy's country beyond the limits agreed on, under the penalty of being treated as freebooters. By such steps they prevented a multitude of disorders and enormities, which entail ruin on the people, and generally without the least advantage to the belligerent sovereigns. Whence comes it that so noble an example is not universally imitated?
If it is lawful to take away the property of an unjust enemy in order to weaken or punish him, (§§ 161, 162), the same motives justify us in destroying what we cannot conveniently carry away. Thus, we waste a country, and destroy the provisions and forage, that the enemy may not find a subsistence there: we sink his ships when we cannot take them or bring them off. All this tends to promote the main object of the war: but such measures are only to be pursued with moderation, and according to the exigency of the case. Those who tear up the vines and cut down the fruit-trees are looked upon as savage barbarians, unless when they do it with a view to punish the enemy for some gross violation of the law of nations. They desolate a country for many years to come, and beyond what their own safety requires. Such conduct is not dictated by prudence, but by hatred and fury.
On certain occasions, however, matters are carried still farther: a country is totally ravaged, towns and villages are sacked, and delivered up a prey to fire and sword. Dreadful extremities, even when we are forced into them! Savage and monstrous excesses, when committed without necessity! There are two reasons, however, which may authorize them, — 1. the necessity of chastising an unjust and barbarous nation, of checking her brutality, and preserving ourselves from her depredations. Who can doubt that the king of Spain and the powers of Italy have a very good right utterly to destroy those maritime towns of Africa, those nests of pirates, that are continually molesting their commerce and ruining their subjects? But what nation will proceed to such extremities merely for the sake of punishing the hostile sovereign? It is but indirectly that he will feel the punishment: and how great the cruelty, to ruin an innocent people in order to reach him! The same prince whose firmness and just resentment was commended in the bombardment of Algiers, was, after that of Genoa, accused of pride and inhumanity. 2. We ravage a country and render it uninhabitable, in order to make it serve us as a barrier, and to cover our frontier against an enemy whose incursions we are unable to check by any other means. A cruel expedient, it is true: but why should we not be allowed to adopt it at the expense of the enemy, since, with the same view, we readily submit to lay waste our own provinces?
The czar Peter the Great, in his flight before the formidable Charles the Twelfth, ravaged an extent of above fourscore leagues of his own empire, in order to check the impetuosity of a torrent which he was unable to withstand. Thus, the Swedes were worn down with want and fatigue; and the Russian monarch reaped at Pultowa the fruits of his circumspection and sacrifices. But violent remedies are to be sparingly applied: there must be reasons of suitable importance to justify the use of them. A prince who should, without necessity, imitate the czar's conduct, would be guilty of a crime against his people: and he who does the like in an enemy's country, when impelled to it by no necessity, or induced by feeble reasons, becomes the scourge of mankind. In the last century, the French ravaged and burnt the Palatinate.2 All Europe resounded with invectives against such a mode of waging war. It was in vain that the court attempted to palliate their conduct, by alleging that this was done only with a view to cover their own frontier: — that was an end to which the ravaging of the Palatinate contributed but little: and the whole proceeding exhibited nothing to the eyes of mankind but the revenge and cruelty of a haughty and unfeeling minister.
For whatever cause a country is ravaged, we ought to spare those edifices which do honour to human society, and do not contribute to increase the enemy's strength, — such as temples, tombs, public buildings, and all works of remarkable beauty. What advantage is obtained by destroying them? It is declaring one's self an enemy to mankind, thus wantonly to deprive them of these monuments of art and models of taste; and in that light Belisarius represented the matter to Tittila, king of the Goths.3 We still detest those barbarians who destroyed so many wonders of art, when they overran the Roman empire. However just the resentment with which the great Gustavus was animated against Maximilian, duke of Bavaria, he rejected with indignation the advice of those who wished him to demolish the stately palace of Munich, and took particular care to preserve that admirable structure.
Nevertheless, if we find it necessary to destroy edifices of that nature in order to carry on the operations of war, or to advance the works in a siege, we have an undoubted right to take such a step. The sovereign of the country, or his general, makes no scruple to destroy them, when necessity or the maxims of war require it. The governor of a besieged town sets fire to the suburbs, that they may not afford a lodgment to the besiegers. Nobody presumes to blame a general who lays waste gardens, vineyards, or orchards, for the purpose of encamping on the ground, and throwing up an entrenchment. If any beautiful production of art be thereby destroyed, it is an accident, an unhappy consequence of the war; and the general will not be blamed, except in those cases when he might have pitched his camp elsewhere without the smallest inconvenience to himself.
In bombarding towns, it is difficult to spare the finest edifices. At present we generally content ourselves with battering the ramparts and defences of a place. To destroy a town with bombs and red-hot balls, is an extremity to which we do not proceed without cogent reasons. But it is nevertheless warranted by the laws of war, when we are unable by any other mode to reduce an important post, on which the success of the war may depend, or which enables the enemy to annoy us in a dangerous manner. It is also sometimes practised when we have no other means of forcing an enemy to make war with humanity, or punishing him for some instance of outrageous conduct. But it is only in cases of the last extremity, and with reluctance, that good princes exert a right of so rigorous a nature. In the year 1694, the English bombarded several maritime towns of France, on account of the great injury done to the British trade by their privateers. But the virtuous and noble-minded consort of William the Third did not receive the news of these exploits with real satisfaction. She expressed a sensible concern that war should render such acts of hostility necessary, — adding that she hoped such operations would be viewed in so odious a light, as to induce both parties to desist from them in future.4
Fortresses, ramparts, and every kind of fortification are solely appropriated to the purposes of war: and in a just war, nothing is more natural, nothing more justifiable, than to demolish those which we do not intend to retain in our own possession. We so far weaken the enemy, and do not involve an innocent multitude in the losses which we cause him. This was the grand advantage that France derived from her victories in a war in which she did not aim at making conquests.
Safe-guards are granted to lands and houses intended to be spared, whether from pure favour, or with the proviso of a contribution. These consist of soldiers, who protect them against parties, by producing the general's orders. The persons of these soldiers must be considered by the enemy as sacred: he cannot commit any hostilities against them, since they have taken their station there as benefactors, and for the safety of his subjects. They are to be respected in the same manner as an escort appointed to a garrison, or to prisoners of war, on their return to their own country.
What we have advanced is sufficient to give an idea of the moderation which we ought to observe, even in the most just war, in exerting our right to pillage and ravage the enemy's country. Except the single case in which there is question of punishing an enemy, the whole is reducible to this general rule, — All damage done to the enemy unnecessarily, every act of hostility which does not tend to procure victory and bring the war to a conclusion, is a licentiousness condemned by the law of nature.
But this licentiousness is unavoidably suffered to pass with impunity, and to a certain degree, tolerated, between nation and nation. How then shall we, in particular cases, determine with precision to what lengths it was necessary to carry hostilities, in order to bring the war to a happy conclusion? And even if the point could be exactly ascertained, nations acknowledge no common judge: each forms her own judgment of the conduct she is to pursue in fulfilling her duties. If you once open a door for continual accusations of outrageous excess in hostilities, you will only augment the number of complaints, and inflame the minds of the contending parties with increasing animosity; fresh injuries will be perpetually springing up; and the sword will never be sheathed till one of the parties be utterly destroyed. The whole, therefore, should, between nation and nation, be confined to general rules, independent of circumstances, and sure and easy in the application. Now the rules cannot answer this description, unless they teach us to view things in an absolute sense, — to consider them in themselves and in their own nature. As, therefore, with respect to hostilities against the enemy's person, the voluntary law of nations only prohibits those measures which are in themselves unlawful and odious, such as poisoning, assassination, treachery, the massacre of an enemy who has surrendered and from whom we have nothing to fear; — so the same law, in the question now before us, condemns every act of hostility which, of its own nature, and independently of circumstances, contributes nothing to the success of our arms, and does not increase our strength or weaken that of the enemy: and, on the other hand, it permits or tolerates every act which in itself is naturally adapted to promote the object of the war, without considering whether such act of hostility was unnecessary, useless, or superfluous, in that particular instance, unless there be the clearest evidence to prove that an exception ought to have been made in the case in question: for where there is positive evidence, the freedom of judgment no longer exists. Hence, the pillaging of a country, or ravaging it with fire, is not, in a general view of the matter, a violation of the laws of war: but if an enemy of much superior strength treats in this manner a town or province which he might easily keep in his possession as a means of obtaining an equitable and advantageous peace, he is universally accused of making war like a furious barbarian. Thus the wanton destruction of public monuments, temples, tombs, statues, paintings, &c., is absolutely condemned, even by the voluntary law of nations, as never being conducive to the lawful object of war. The pillage and destruction of towns, the devastation of the open country, ravaging, setting fire to houses, are measures no less odious and detestable on every occasion when they are evidently put in practice without absolute necessity, or at least very cogent reasons. But as the perpetrators of such outrageous deeds might attempt to palliate them under pretext of deservedly punishing the enemy, — be it here observed, that the natural and voluntary law of nations does not allow us to inflict such punishments, except for enormous offences against the law of nations: and even then, it is glorious to listen to the voice of humanity and clemency, when rigour is not absolutely necessary. Cicero condemns the conduct of his countrymen in destroying Corinth to avenge the unworthy treatment offered to the Roman ambassadors, because Rome was able to assert the dignity of her ministers without proceeding to such extreme rigour.
(164) See, in general, Grotius, ch. 5; Home on Captures; Marten's L. Nat. 287; and the modern decisions, 1 Chitty's Commercial Law, 377-437; and Chitty's Law of Nations, per tot. And as to the legal right of embargo and capture, as it affects commerce, and exceptions, as respects small fishing vessels, 1 Chitty's C.L. 426. But, that exemption is matter of forbearance, rather than of right, and seems analogous to husbandmen and cultivators of land being usually spared, see Vattel § 147, ante 352; and see Young, Jacob, and Johorea, 1 Rob. Rep. 19. as to fishing-boats and fishermen, per Sir W. Scott.
Questions respecting captures and prices, or even imprisonment of the person incident to the seizure as prize, cannot in general become the subject of litigation, directly, in any of the municipal courts of this country, but must be investigated in a prize court, which, in this country, is holden under a distinct authority from that of the court of Admiralty, viz. under a special commission from the king, who would otherwise preside in person over prize questions: and from such commission there is usually an appeal to the king in council; see cases in note (165), post, 365. — C.
1. The peace was become absolutely necessary to him; and he had, in return for his few conquests, Louisbourg, with all its dependencies, which were of more importance to him. [Note by the former translator.]
(165) That they belong to the king., unless delegated to a subject, see further, post, § 202, page 391. But to the king for the benefit of the community, and not as his own private property. Id. Ibid. In case a territory of a foreign sovereign, or a part of it, be captured. the sovereign of the conquering state is entitled to all the property there of the conquered sovereign; Advocate General v. Amerchuynd, Knapp's Rep. of Cases before the Privy Council, 329; and the same case establishes that there is no distinction, in this respect, between the public and private property of an absolute monarch; and that, therefore, money in the hands of the banker of a prince, whose territories have been conquered by the British, may be recovered on an information by the English attorney-general from the banker. Decided in Privy Council, reversing the judgment of the court below at Bombay. See Holt's case, Ni. Pri. 113; Lindo v. Rodney, Douglas, 313; Cauxx v. Eden, Douglas, 594; Elphinstone v. Bedreechund, Knapp's Rep. 316; Chitty's Gen. Practice, 2. n. (b), 16 n. (e), Id. 818. But to this rule there is an exception, as regards any trust which may be enforced in a court of equity; Pearson v. Belcher, 4 Ves. 627; Chaloner v. Samson, 1 Bro. pl. 149; and see Hill v. Reardon, 2 Russell's Rep. 608, qualifying 2 Sim. & Stu. Rep. 437-451; Chitty's Gen. Practice, 818. When the property seized is under £100, the claim may be settled in the prize court, summarily, and without a formal suit; but not so, if it be even a trifle above that amount. The Mercurius, 5 Rob. 127.
In the case of Elphinstone v. Bedreechund, Knapp's Rep. 316, where the members of the provisional government of a recently conquered country had seized the property of a native, who had been refused the benefit of the articles of capitulation of a fortress, of which he was the governor, but who had been permitted to reside under military surveillance in his own house in the city, in which the seizure was made, and which was at a distance from the scene of actual hostilities, it was held that such seizure must be regarded in the light of a hostile seizure, and that, therefore, a municipal court had no jurisdiction on the subject. And it was further considered, in the same case, that the circumstance that, at the time of the seizure, the city where it was made had been, for some months previously, in the undisturbed possession of the provisional government, and that courts of justice, under the authority of that government, were sitting in it for the administration of justice, did not alter the character of the transaction; and that, consequently, whatever might be the legality of the capture, or hostile seizure, still the party had mistaken his remedy in prosecuting it in the supreme court of Bombay. — C.
2. In 1674, and a second time, much more dreadfully, in 1689.
3. See his letter in Procopius. It is quoted by Grotius, lib. iii. cap. xxii. § ii. note xi.
4. Histoire de Guillaume III. liv. vi. tom. ii. p. 66.
THE faith of promises and treaties is the basis of the peace of nations, as we have shown in an express chapter (Book II. Ch. XV.) It is sacred among men, and absolutely essential to their common safety. Are we then dispensed from it towards an enemy? To imagine that between two nations at war every duty ceases, every tie of humanity is broken, would be an error equally gross and destructive. Men, although reduced to the necessity of taking up arms for their own defence, and in support of their rights, do not therefore cease to be men. They are still subject to the same laws of nature: — otherwise there would be no laws of war. Even he who wages an unjust war against us is still a man: we still owe him whatever that quality requires of us. But a conflict arises between our duties towards ourselves, and those which connect us with other men. The light to security authorises us to put in practice, against this unjust enemy, every thing necessary for repelling him, or bringing him to reason. But all those duties, the exercise of which is not necessarily suspended by this conflict, subsist in their full force: they are still obligatory on us, both with respect to the enemy and to all the rest of mankind. Now, the obligation of keeping faith is so far from ceasing in time of war by virtue of the preference which the duties towards ourselves are entitled to, that it then becomes more necessary than ever. There are a thousand occasion, even in the course of the war, when, in order to check its rage, and alleviate the calamities which follow in its train, the mutual interest and safety of both the contending parties requires that they should agree on certain points. What would become of prisoners of war, capitulating garrisons, and towns that surrender, if the word of an enemy were not to be relied on? War would degenerate into an unbridled and cruel licentiousness: its evils would be restrained by no bounds; and how could we ever bring it to a conclusion and re-establish peace? If faith be banished from among enemies, a war can never be terminated with any degree of safety, otherwise than by the total destruction of one of the parties. The slightest difference, the least quarrel, would produce a war similar to that of Hannibal against the Romans, in which the parties fought, not for this or that province, not for sovereignty or for glory, but for the very existence of their respective nations.1 Thus it is certain that the faith of promises and treaties is to be held sacred in war as well as in peace, between enemies as well as between friends.(166)
The conventions, the treaties made with a nation, are broken or annulled by a war arising between the contracting parties, either because those compacts are grounded on a tacit supposition of the continuance of peace, or because each of the parties, being authorized to deprive his enemy of what belongs to him, takes from him those rights which he had conferred on him by treaty. Yet here we must except those treaties by which certain things are stipulated in case of a rupture, — as, for instance, the length of time to be allowed on each side for the subjects of the other nation to quit the country, — the neutrality of a town or province, insured by mutual consent, &c. Since, by treaties of this nature, we mean to provide for what shall be observed in case of a rupture, we renounce the right of cancelling them by a declaration of war.
For the same reason, all promises made to an enemy in the course of a war are obligatory. For when once we treat with him whilst the sword is unsheathed, we tacitly but necessarily renounce all power of breaking the compact by way of compensation or on account of the war, as we cancel antecedent treaties, otherwise it would be doing nothing, and there would be an absurdity in treating with the enemy at all.
But conventions made during a war are like all other compacts and treaties, of which the reciprocal observance is a tacit condition (Book II. § 202): we are no longer bound to observe them towards an enemy who has himself been the first to violate them. And even where this is a question of two separate conventions which are wholly unconnected with each other, — although we are never justifiable in using perfidy on the plea of our having to do with an enemy who has broken his word on a former occasion, we may nevertheless suspend the effect of a promise in order to compel him to repair his breach of faith; and what we have promised him may be detained by way of security, till he has given satisfaction for his perfidy. Thus, at the taking of Namur, in 1695, the King of England caused Marshal Boufflers to be put under arrest, and, notwithstanding the capitulation, detained him prisoner, for the purpose of obliging France to make reparation for the infractions of the capitulations of Dixmude and Deinse.2
Good-faith consists not only in the observance of our promises, but also in not deceiving on such occasions as lay us under any sort of obligation to speak the truth. From this subject arises a question which has been warmly debated in former days, and which appeared not a little intricate at a time when people did not entertain just or accurate ideas respecting the nature of a lie. Several writers, and especially divines, have made truth a kind of deity, to which, for its own sake, and independently of its consequences, we owe a certain inviolable respect. They have absolutely condemned every speech that is contrary to the speaker's thoughts: they have pronounced it to be our duty, on every occasion when we cannot be silent, to speak the truth according to the best of our knowledge, and to sacrifice to their divinity our dearest interests rather than be deficient in respect to her. But philoterests, of more accurate ideas and more profound penetration have cleared up that notion, so confused, and so false in its consequences. They have acknowledged that truth in general is to be respected, as being the soul of human society, the basis of all confidence in the mutual intercourse of men, — and, consequently, that a man ought not to speak an untruth, even in matters of indifference, lest he weaken the respect due to truth in general, and injure himself by rendering his veracity questionable even when he speaks seriously. But in thus grounding the respect due to truth on its effects, they took the right road, and soon found it easy to distinguish between the occasions when we are obliged to speak the truth, or declare our thoughts, and those when there exists no such obligation. The appellation of lies is given only to the words of a man who speaks contrary to his thoughts, on occasions when he is under an obligation to speak the truth. Another name (in Latin, falsiloquium3) is applied to any false discourse to persons who have no right to insist on our telling them the truth in the particular case in question.
These principles being laid down, it is not difficult to ascertain the lawful use of truth or falsehood towards an enemy on particular occasions. Whenever we have expressly or tacitly engaged to speak truth, we are indispensably obliged to it by that faith of which we have proved the inviolability. Such is the case of conventions and treaties: — it is indispensably necessary that they should imply a tacit engagement to speak the truth; for it would be absurd to allege that we do not enter into any obligation of not deceiving the enemy under colour of treating with him: — it would be downright mockery, — it would be doing nothing. We are also bound to speak the truth to an enemy on all occasions when we are naturally obliged to it by the laws of humanity, — that is to say, whenever the success of our arms, and the duties we owe to ourselves, do not clash with the common duties of humanity, so as to suspend their force in the present case, and dispense with our performance of them. Thus, when we dismiss prisoners, either on ransom or exchange, it would be infamous to point out the worst road for their march, or to put them in a dangerous one; and should the hostile prince or general inquire after a woman or child who is dear to him, it would be scandalous to deceive him.
But when, by leading the enemy into an error, either by words in which we are not obliged to speak truth, or by some feint, we can gain an advantage in the war, which it would be lawful to seek by open force, it cannot be doubted that such a proceeding is perfectly justifiable. Nay, since humanity obliges us to prefer the gentlest methods in the prosecution of our rights — if, by a stratagem, by a feint void of perfidy, we can make ourselves masters of a strong place, surprise the enemy, and overcome him, it is much better, it is really more commendable, to succeed in this manner, than by a bloody siege or the carnage of a battle.4 But the desire to spare the effusion of blood will by no means authorize us to employ perfidy, the introduction of which would be attended with consequences of too dreadful a nature, and would deprive sovereigns, once embarked in war, of all means of treating together, or restoring peace (§ 174).
Deceptions practised on an enemy, either by words or actions, but without perfidy, — snares laid for him consistent with the rights of war, — are stratagems, the use of which has always been acknowledged as lawful, and had often a great share in the glory of celebrated commanders. The king of England (William III) having discovered that one of his secretaries regularly sent intelligence of every thing to the hostile general, caused the traitor to be secretly put under arrest, and made him write to the duke of Luxembourg that the next day the allies would make a general forage, supported by a large body of infantry with cannon: and this artifice he employed for the purpose of surprising the French army at Steinkirk. But, through the activity of the French general, and the courage of his troops, though the measures were so artfully contrived, the success was not answerable.5
In the use of stratagems, we should respect not only the faith due to an enemy, but also the rights of humanity, and carefully avoid doing things the introduction of which would be pernicious to mankind. Since the commencement of hostilities between France and England, an English frigate is said to have appeared off Calais, and made signals of distress, with a view of decoying out some vessel, and actually seized a boat and some sailers who generously came to her assistance.(167) If the fact be true, that unworthy stratagem deserves a severe punishment. It tends to damp a benevolent charity, which should be held so sacred in the eyes of mankind, and which is so laudable even between enemies. Besides, making signals of distress is asking assistance, and, by that very action, promising perfect security to those who give the friendly succour. Therefore the action attributed to that frigate implies an odious perfidy.
Some nations (even the Romans) for a long time professed to despise every kind of artifice, surprise, or stratagem in war; and others went so far as to send notice of the time and place they had chosen for giving battle.6 In this conduct there was more generosity than prudence, Such behaviour would, indeed, be very laudable, if, as in the frenzy of duels, the only business was to display personal courage. But in war, the object is to defend our country, and by force to prosecute our rights which are unjustly withheld from us: and the surest means of obtaining our end are also the most commendable, provided they be not unlawful and odious in themselves.7 The contempt of artifice, stratagem, and surprise, proceeds often, as in the case of Achilles, from a noble confidence in personal valour and strength; and it must be owned that when we can defeat an enemy by open force, in a pitched battle, we may entertain a better-grounded belief that we have subdued him and compelled him to sue for peace, than if we had gained the advantage over him by surprise, — as Livy§ makes those generous senators say, who did not approve of the insincere mode of proceeding which had been adopted towards Persius, Therefore, when plain and open courage can secure the victory, there are occasions when it is preferable to artifice, because it procures to the state a greater and more permanent advantage.
The employment of spies is a kind of clandestine practice or deceit in war. These find means to insinuate themselves among the enemy, in order to discover the state of his affairs, to pry into his designs, and then give intelligence to their employer. Spies are generally condemned to capital punishment, and with great justice, since we have scarcely any other means of guarding against the mischief they may do us (§ 155). For this reason, a man of honour, who is unwilling to expose himself to an ignominious death from the hand of a common executioner, ever declines serving as a spy; and, moreover, he looks upon the office as unworthy of him, because it cannot be performed without some degree of treachery The sovereign, therefore, has no right to require such a service of his subjects, unless, perhaps, in some singular case, and that of the highest importance. It remains for him to hold out the temptation of a reward, as an inducement to mercenary souls to engage in the business. If those whom he employs make a voluntary tender of their services, or if they be neither subject to, nor in any wise connected with the enemy, he may unquestionably take advantage of their exertions, without any violation of justice or honour. But is it lawful, is it honourable, to solicit the enemy's subjects to act as spies and betray him? To this question the following section will furnish an answer.
It is asked, in general, whether it be lawful to seduce the enemy's men, for the purpose of engaging them to transgress their duty by an infamous treachery? Here a distinction must be made between what is due to the enemy, notwithstanding the state of warfare, and what is required by the internal laws of conscience and the rules of propriety. We may lawfully endeavour to weaken the enemy by all possible means (§ 138), provided they do not affect the common safety of human society, as do poison and assassination (§ 155). Now, in seducing a subject to turn spy, or the governor of a town to deliver it up to us, we do not strike at the foundation of the common safety and welfare of mankind. Subjects acting as spies to an enemy, do not cause a fatal and unavoidable evil: it is possible to guard against them to a certain degree; and as to the security of fortresses, it is the sovereign's business to be careful in the choice of the governors to whom he intrusts them. Those measures, therefore, are not contrary to the external law of nations; nor can the enemy complain of them as odious proceedings. Accordingly, they are practised in all wars. But are they honourable, and compatible with the laws of a pure conscience? Certainly no; and of this the generals themselves are sensible, as they are never heard to boast of having practised them. Seducing a subject to betray his country, engaging a traitor to set fire to a magazine, tampering with the fidelity of a governor, enticing him, persuading him to deliver up the town intrusted to his charge, is prompting such persons to commit detestable crimes. Is it honourable to corrupt our most inveterate enemy, and tempt him to the commission of a crime? If such practices are at all excusable, it can be only in a very just war, and when the immediate object is to save our country, when threatened with ruin by a lawless conqueror. On such an occasion (as it should seem) the guilt of the subject or general who should betray his sovereign when engaged in an evidently unjust cause, would not be of so very odious a nature. He who himself tramples upon justice and probity, deserves in his turn to feel the effects of wickedness and perfidy.8 And if ever it is excusable to depart from the strict rules of honour, it is against such an enemy and in such an extremity. The Romans, whose ideas concerning the rights of war were in general so pure and elevated, did not approve of such clandestine practices. They made no account of the consul Cæpio's victory over Viriatus, because it had been obtained by means of bribery. Valerius Maximus asserts that it was stained with a double perfidy;9 and another historian says that the senate did not approve of it.10
It is a different thing merely to accept of the offers of a traitor, we do not seduce him; and we may take advantage of his crime, while at the same time we detest it. Fugitives and deserters commit a crime against their sovereign; yet we receive and harbour them by the rights of war, as the civil law expresses it.11 If a governor sells himself, and offers for a sum of money to deliver up his town, shall we scruple to take advantage of his crime, and to obtain without danger what we have a right to take by force? But, when we feel ourselves able to succeed without the assistance of traitors, it is noble to reject their offers with detestation. The Romans, in their heroic ages, in those times when they used to display such illustrious examples of magnanimity and virtue, constantly rejected with indignation every advantage presented to them by the treachery of any of the enemy's subjects. They not only acquainted Pyrrhus with the atrocious design of his physician, but also refused to take advantage of a less heinous crime, and sent back to the Falisci, bound and fettered, a traitor who had offered to deliver up the king's children.12
But when intestine divisions prevail among the enemy, we may without scruple hold a correspondence with one of the parties, and avail ourselves of the right which they think they have to injure the opposite party. Thus, we promote our own interests, without seducing any person, or being in anywise partakers of his guilt. If we take advantage of his error, this is doubtless allowable against an enemy.
Deceitful intelligence is that of a man who feigns to betray his own party, with a view of drawing the enemy into a snare. If he does this deliberately, and has himself made the first overtures, it is treachery, and an infamous procedure: but an officer, or the governor of a town, when tampered with by the enemy, may, on certain occasions, lawfully feign acquiescence to the proposal with a view to deceive the seducer: an insult is offered to him in tempting his fidelity; and to draw the tempter into the snare, is no more than a just vengeance. By this conduct he neither violates the faith of promises nor impairs the happiness of mankind: for criminal engagements are absolutely void, and ought never to be fulfilled; and it would be a fortunate circumstance if the promises of traitors could never be relied on, but were on all sides surrounded with uncertainties and dangers. Therefore a superior, on information that the enemy is tempting the fidelity of an officer or soldier, makes no scruple of ordering that subaltern to feign himself gained over, and to arrange his pretended treachery so as to draw the enemy into an ambuscade. The subaltern is obliged to obey. But when a direct attempt is made to seduce the commander-in-chief, a man of honour generally prefers, and ought to prefer, the alternative of explicitly and indignantly rejecting so disgraceful a proposal.13
1. De salute ceriatum est.
(166) To this doctrine, the prohibition of subjects of belligerent states having commercial contracts with each other, and the prohibition in Great Britain of contracts of ransom, constitute exceptions, post. 403-4 4. C.
2. Histoire de Guillaume III tom. ii. p.
3. Falsiloquium, false speaking, untruth, falsehood.
4. There was a time when those who were taken in attempting to surprise a town, were put to death. In 1597, prince Maurice attempted to take Venloo by surprise: the attempt failed; and some of his men, being made prisoners on the occasion, "were condemned to death, — the mutual consent of the parties having introduced that new rule, in order to obviate dangers of this kind." (Grotius Hist. of the Disturb, in the Netherlands.) Since that time, the rule has been changed: at present, military men who attempt to surprise a town in time of open war, are not, in case of being taken, treated in a different manner from other prisoners: and this custom is more consonant to reason and humanity. Nevertheless, if they were in disguise, or had employed treachery, they would be treated as spies; and this is, perhaps, what Grotius means; for I do not, in any other instance, find that such severity was used towards troops who were simply come to surprise a town in the silence of the night. It would be quite another affair, if such an attempt were made in time of profound peace; and the Savoyards, who were taken in the escalade of Geneva, deserved the punishment of death which was inflicted on them. [See page 321.]
5. Mémoires de Feuquléres, tom. iii. p. 87.
(167) See an instance of similar baseness, Baumann, 1 Rob. Rep. 245; ante, § 69, page 321. — C.
6. This was the practice of the ancient Gauls. See Livy. — It is said of Achilles, that he was for fighting openly, and not of a disposition to conceal himself in the famous wooden horse, which proved fatal to the Trojans: — Ille non, inclosus equo Minervæ Sacra mentito, male feriatos Troas, et lætam Priami choreis Falleret aulam; Sed palam captis gravis. Hor. lib. iv. od. 6
7. Virg. Æn. ii. 390. § Tit Liv. lib. xlii. cap. 47
8. Xenophon very properly expresses the reasons which render treachery detestable, and which authorize us to repress it by other means than open force. "Treachery," says he, "is more dreadful than open war, in proportion as it is more difficult to guard against clandestine plots than against an open attack: it is also more odious, because men engaged in overt hostilities may again treat together, and come to a sincere reconciliation; whereas nobody can venture to treat with or repose any confidence in a man whom he has once found guilty of treachery." — Hist. Graw. lib. ii. cap. 3.
9. Viriati etiam cædes duplicem perdiæ accusationem recepit, in amicis, quod eorum manibus interemptus est, in Q. Servilio Caepione consule, qula is sceleris hujus, auctor, impunita te promissa, full, victoriamque non meruit sed emit. — Lib. ix. cap. 6. — Although this instance seems to belong to another head (that of assassination), I nevertheless quote it here, because it does not appear, from other authors, that Cæpio had induced Viratus's soldiers to assassinate him. Among others, see Eutropius, lib. vi. cap. 8.
10. Quæ victoria, qula empta erat, a senatu non probata. Auctor de Viris Illust. cap. 71.
11. Transfugam jure belli recipimus. Digest 1. xli. tit. 1, de adquir. Rer. Dom. leg. 51.
12. Eâdem fide indicatum Pyrrho regi medicum vitæ ejus insidiantem; eâdem Faliscis vinctum traditum proditorem liberorum regis. Tit. Liv. lib. xlii. cap. 47
13. When the duke of Parma was engaged in the siege of Bergen-op-zoom, two Spanish prisoners, who were confined in a fort near the town, attempted to gain over a tavern-keeper, and an English soldier, to betray that fort to the duke. These men, having acquainted the governor with the circumstance, received orders from him to feign acquiescence; and, accordingly, having made all their arrangements with the duke of Parma for the surprisal of the fort, they gave notice of every particular to the governor. He, in consequence, kept himself prepared to give a proper reception to the Spaniards, who fell into the snare, and lost near three thousand men on the occasion. — Grotius, Hist, of the disturb, in the Netherlands, book i.
HE who is engaged in war derives all his right from the justice of his cause. The unjust adversary who attacks or threatens him, — who withholds what belongs to him, — in a word, who does him an injury, — lays him under the necessity of defending himself, or of doing himself justice, by force of arms; he authorizes him in all the acts of hostility necessary for obtaining complete satisfaction. Whoever therefore takes up arms without a lawful cause, can absolutely have no right whatever: every act of hostility that he commits is an act of injustice.
He is chargeable with all the evils, all the horrors of the war: all the effusion of blood, the desolation of families, the rapine, the acts of violence, the ravages, the conflagrations, are his works and his crimes. He is guilty of a crime against the enemy, whom he attacks, oppresses, and massacres without cause: he is guilty of a crime against his people, whom he forces into acts of injustice, and exposes to danger, without reason or necessity, — against those of his subjects who are ruined or distressed by the war, — who lose their lives, their property, or their health, in consequence of it: finally, he is guilty of a crime against mankind in general, whose peace he disturbs, and to whom he sets a pernicious example. Shocking catalogue of miseries and crimes! dreadful account to be given to the King of kings, to the common Father of men! May this slight sketch strike the eyes of the rulers of nations, — of princes and their ministers! Why may not we expect some benefit from it? Are we to suppose that the great are wholly lost to all sentiments of honour, of humanity, of duty, and of religion? And, should our weak voice, throughout the whole succession of ages, prevent even one single war, how gloriously would our studies and our labour be rewarded!
He who does an injury is bound to repair the damage, or to make adequate satisfaction if the evil be irreparable, and even to submit to punishment, if the punishment be necessary, either as an example, or for the safety of the party offended, and for that of human society. In this predicament stands a prince who is the author of an unjust war. He is under an obligation to restore whatever he has taken, — to send back the prisoners at his own expense, — to make compensation to the enemy for the calamities and losses he has brought on him, — to reinstate ruined families, — to repair, if it were possible, the loss of a father, a son, a husband.
But how can he repair so many evils? Many are in their own nature irreparable. And as to those which maybe compensated by an equivalent, where shall the unjust warrior find means to furnish an indemnification for all his acts of violence? The prince's private property will not be sufficient to answer the demands. Shall he give away that of his subjects? — It does not belong to him. Shall he sacrifice the national lands, a part of the state? — But the state is not his patrimony (Book I. § 93): he cannot dispose of it at will. And, although the nation be, to a certain degree, responsible for the acts of her ruler, — yet (exclusive of the injustice of punishing her directly for faults of which she is not guilty), if she is responsible for her sovereign's acts, that responsibility only regards other nations, who look to her for redress (Book I. § 40, Book II. §§ 81, 82): but the sovereign cannot throw upon her the punishment due to his unjust deeds, nor despoil her in order to make reparation for them. And, were it even in his power, would this wash away his guilt and leave him a clear conscience? Though acquitted in the eyes of the enemy, would he be so in the eyes of his people? It is a strange kind of justice which prompts a man to make reparation for his own misdeeds at the expense of a third person: this is no more than changing the object of his injustice. Weigh all these things, ye rulers of nations! and, when clearly convinced that an unjust war draws you into a multitude of iniquities which all your power cannot repair, perhaps you will be less hasty to engage in it.
The restitution of conquests, of prisoners, and of all property that still exists in a recoverable state, admits of no doubt when the injustice of the war is acknowledged. The nation in her aggregate capacity, and each individual particularly concerned, being convinced of the injustice of their possession, are bound to relinquish it, and to restore every thing which they have wrongfully acquired. But, as to the reparation of any damage, are the military, the generals, officers and soldiers, obliged in conscience to repair the injuries which they have done, not of their own will, but as instruments in the hands of their sovereign? I am surprised that the judicious Grotius should, without distinction, hold the affirmative.1 It is a decision which cannot be supported, except in the case of a war so palpably and indisputably unjust, as not to admit a presumption of any secret reason of state that is capable of justifying it, — a case in politics which is nearly impossible. On all occasions susceptible of doubt, the whole nation, the individuals, and especially the military, are to submit their judgment to those who hold the reins of government, — to the sovereign: this they are bound to do by the essential principles of political society, and of government.
What would be the consequence, if, at every step of the sovereign, the subjects were at liberty to weigh the justice of his reasons, and refuse to march to a war which might to them appear unjust? It often happens that prudence will not permit a sovereign to disclose all his reasons. It is the duty of subjects to suppose them just and wise, until clear and absolute evidence tells them the contrary. When, therefore, under the impression of such an idea, they have lent their assistance in a war which is afterwards found to be unjust, the sovereign alone is guilty: he alone is bound to repair the injuries. The subjects, and in particular the military, are innocent: they have acted only from a necessary obedience. They are bound, however, to deliver up what they have acquired in such a war, because they have no lawful title to possess it. This I believe to be the almost unanimous opinion of all honest men, and of those officers who are most distinguished for honour and probity. Their case, in the present instance, is the same as that of all those who are the executors of the sovereign's orders. Government would be impracticable if every one of its instruments was to weigh its commands, and thoroughly canvass their justice before he obeyed them. But, if they are bound by a regard for the welfare of the state to suppose the sovereign's orders just, they are not responsible for them.
1. De Jure Belli et Pacis, lib. iii. cap. x.
ALL the doctrines we have laid down in the preceding chapter are evidently deduced from sound principles, — from the eternal rules of justice: they are so many separate articles of that sacred law, which nature, or the Divine Author of nature, has prescribed to nations. He alone whom justice and necessity have armed, has a right to make war; he alone is empowered to attack his enemy, to deprive him of life, and wrest from him his goods and possessions. Such is the decision of the necessary law of nations, or of the law of nature, which nations are strictly bound to observe. (Prelim § 7): it is the inviolable rule that each ought conscientiously to follow. But, in the contests of nations and sovereigns who live together in a state of nature, how can this rule be enforced? They acknowledge no superior. Who then shall be judge between them, to assign to each his rights and obligations, — to say to the one, "You have a right to take up arms, to attack your enemy, and subdue him by force;" — and to the other, "Every act of hostility that you commit will be an act of injustice; your victories will be so many murders, your conquests rapines and robberies?" Every free and sovereign state has a right to determine, according to the dictates of her own conscience, what her duties require of her, and what she can or cannot do with justice (Prelim. § 16). If other nations take upon themselves to judge of her conduct, they invade her liberty, and infringe her most valuable rights (Prelim. § 15); and, moreover, each party, asserting that they have justice on their own side, will arrogate to themselves all the rights of war, and maintain that their enemy has none, that his hostilities are so many acts of robbery, so many infractions of the law of nations, in the punishment of which all states should unite. The decision of the controversy, and of the justice of the cause, is so far from being forwarded by it, that the quarrel will become more bloody, more calamitous in its effects, and also more difficult to terminate. Nor is this all: the neutral nations themselves will be drawn into the dispute, and involved in the quarrel. If an unjust war cannot, in its effect, confer any right, no certain possession can be obtained of any thing taken in war, until some acknowledged judge (and there is none such between nations) shall have definitively pronounced concerning the justice of the cause: and things so acquired will ever remain liable to be claimed, as property carried off by robbers.
Let us then leave the strictness of the necessary law of nature to the conscience of sovereigns; undoubtedly they are never allowed to deviate from it. But, as to the external effects of the law among men, we must necessarily have recourse to rules that shall be more certain and easy in the application, and this for the very safety and advantage of the great society of mankind. These are the rules of the voluntary law of nations (Prelim. § 21). The law of nature, whose object it is to promote the welfare of human society, and to protect the liberties of all nations, — which requires that the affairs of sovereigns should be brought to an issue, and their quarrels determined and carried to a speedy conclusion, — that law, I say, recommends the observance of the voluntary law of nations, for the common advantage of states, in the same manner as it approves of the alterations which the civil law makes in the rules of the law of nature, with a view to render them more suitable to the state of political society, and more easy and certain in their application. Let us, therefore, apply to the particular subject of war the general observation made in our Preliminaries (§ 28) — a nation, a sovereign, when deliberating on the measures he is to pursue in order to fulfil his duty, ought never to lose sight of the necessary law, whose obligation on the conscience is inviolable: but in examining what he may require of other states, he ought to pay a deference to the voluntary law of nations, and restrict even his just claims by the rules of that law, whose maxims have for their object the happiness and advantage of the universal society of nations. Though the necessary law be the rule which he in variably observes in his own conduct, he should allow others to avail themselves of the voluntary law of nations.
The first rule of that law, respecting the subject under consideration, is, that regular war, as to its effects, is to be accounted just on both sides. This is absolutely necessary, as we have just shown, if people wish to introduce any order, any regularity, into so violent an operation as that of arms, or to set any bounds to the calamities of which it is productive, and leave a door constantly open for the return of peace. It is even impossible to point out any other rule of conduct to be observed between nations, since they acknowledge no superior judge.
Thus, the rights founded on the state of war, the lawfulness of its effects, the validity of the acquisitions made by arms, do not, externally and between mankind, depend on the justice of the cause, but on the legality of the means in themselves, — that is, on everything requisite to constitute a regular war. If the enemy observes all the rules of regular warfare (see Chap, III. of this Book), we are not entitled to complain of him as a violator of the law of nations. He has the same pretensions to justice as we ourselves have; and all our resource lies in victory or an accommodation.
Second rule. — The justice of the cause being reputed equal between two enemies, whatever is permitted to the one in virtue of the state of war, is also permitted to the other. Accordingly, no nation, under pretence of having justice on her side, ever complains of the hostilities of her enemy, while he confines them within the limits prescribed by the common laws of war. We have, in the preceding chapters, treated of what is allowable in a just war. It is precisely that, and no more, which the voluntary law equally authorizes in both parties. That law puts things between both on a parity, but allows to neither what is in itself unlawful: it can never countenance unbridled licentiousness. If, therefore, nations transgress those bounds, — if they carry hostilities beyond what the internal and necessary law permits in general for the support of a just cause, — far be it from us to attribute these excesses to the voluntary law of nations: they are solely imputable to a depravation of manners, which produces an unjust and barbarous custom. Such are those horrid enormities sometimes committed by the soldiery in a town taken by storm.
3. We must never forget that this voluntary law of nations, which is admitted only through necessity, and with a view to avoid greater evils (§§ 188, 189), does not, to him who takes up arms in an unjust cause, give any real right that is capable of justifying his conduct and acquitting his conscience, but merely entitles him to the benefit of the external effect of the law, and to impunity among mankind. This sufficiently appears from what we have said in establishing the voluntary law of nations. The sovereign, therefore, whose arms are not sanctioned by justice, is not the less unjust, or less guilty of violating the sacred law of nature, although that law itself (with a view to avoid aggravating the evils of human society by an attempt to prevent them) requires that he be allowed to enjoy the same external rights as justly belong to his enemy. In the same manner, the civil law authorizes a debtor to refuse payment of his debts in a case of prescription: but he then violates his duty: he takes advantage of a law which was enacted with a view to prevent the endless increase of lawsuits; but his conduct is not justifiable upon any grounds of genuine right.
From the unanimity that in fact prevails between states in observing the rules which we refer to the voluntary law of nations, Grotius assumes for their foundation an actual consent on the part of mankind, and refers them to the arbitrary law of nations. But, exclusive of the difficulty which would often occur in proving such agreement, it would be of no validity except against those who had formerly entered into it. If such an engagement existed, it would belong to the conventional law of nations, which must be proved by history, not by argument, and is founded on facts, not on principles. In this work we lay down the natural principles of the law of nations. We deduce them from nature itself; and what we call the voluntary law of nations consists in rules of conduct and of external right, to which nations are, by the law of nature, bound to consent; so that we are authorized to presume their consent, without seeking for a record of it in the annals of the world; because, even if they had not given it, the law of nature supplies their omission, and gives it for them. In this particular, nations have not the option of giving or withholding their consent at pleasure: the refusal to give it would be an infringement of the common rights of nations (Prelim. § 21).
This voluntary law of nations, thus established, is of very extensive use, and is far from being a chimera, an arbitrary or groundless fiction. It flows from the same source, and is founded on the same principles, with the natural and necessary law. For what other reason does nature prescribe such and such rules of conduct to men, except because those rules are necessary to the safety and welfare of mankind? But the maxims of the necessary law of nations are founded immediately on the nature of things, and particularly on that of man, and of political society. The voluntary law of nations supposes an additional principle, — the nature of the great society of nations, and of their mutual intercourse. The necessary law enjoins to nations what is absolutely indispensable, and what naturally tends to their perfection and common happiness. The voluntary law tolerates what cannot be avoided without introducing greater evils.
IF it be lawful to carry off things belonging to an enemy, with a view of weakening him (§ 160), and sometimes of punishing him (§ 162), it is no less lawful in a just war to appropriate them to our own use, by way of compensation, which the civilians term expletio juris (§ 161). They are retained as equivalent for what is due by the enemy, for the expenses and damages which he has occasioned, and even (when there is cause to punish him) as a commutation for the punishment he has deserved. For, when I cannot obtain the individual thing which belongs or is due to me, I have a right to an equivalent, which, by the rules of expletive justice, and in moral estimation, is considered as the thing itself. Thus, according to the law of nature, which constitutes the necessary law of nations, war, founded on justice, is a lawful mode of acquisition.
But that sacred law does not authorize even the acquisitions made in a just war, any farther than as they are approved by justice, — that is to say, no farther than is requisite to obtain complete satisfaction in the degree necessary for accomplishing the lawful ends we have just mentioned. An equitable conqueror, deaf to the suggestions of ambition and avarice, will make a just estimate of what is due to him, — that is to say, of the thing which has been the subject of the war (if the thing itself is no longer recoverable), and of the damages and expenses of the war, — and will retain no more of the enemy's property than what is precisely sufficient to furnish the equivalent. But if he lias to do with a perfidious, restless, and dangerous enemy, he will, by way of punishment, deprive him of some of his towns or provinces, and keep them to serve as a barrier to his own dominions. Nothing is more allowable than to weaken an enemy who has rendered himself suspected and formidable. The lawful end of punishment is future security. The conditions necessary for rendering an acquisition, made by arms, just and irreproachable before God and our own conscience, are these, — justice in the cause, and equity in the measure of the satisfaction.
But nations cannot, in their dealings with each other, insist on this rigid justice. By the rules of the voluntary law of nations, every regular war is on both sides accounted just, as to its effects (§ 190); and no one has a right to judge a nation respecting the unreasonableness of her claims, or what she thinks necessary for her own safety (Prelim. § 23). Every acquisition, therefore, which has been made in regular warfare, is valid according to the voluntary law of nations, independently of the justice of the cause and the reasons which may have induced the conqueror to assume the property of what he has taken. Accordingly, nations have ever esteemed conquest a lawful title; and that title has seldom been disputed, unless where it was derived from a war not only unjust in itself, but even destitute of any plausible pretext.
The property of movable effects is vested in the enemy from the moment they come into his power; and if he sells them to neutral nations, the former proprietor is not entitled to claim them. But such things must be actually and truly in the enemy's power, and carried to a place of safety. Suppose a foreigner, coming into our country, buys a portion of the booty which a party of enemies have just taken from us: our men, who are in pursuit of this party, may very justly seize on the booty which that foreigner was over precipitate in buying. On this head, Grotius quotes from De Thou the instance of the town of Lierre in Brabant, which having been captured and recaptured on the same day, the booty taken from the inhabitants was restored to them, because it had not been twenty-four hours in the enemy's hands.1 This space of twenty-four hours, together with the practice observed at sea,2 is an institution of the law of nations established by agreement or custom, and is even a civil law in some states. The natural reason of the conduct adopted towards the inhabitants of Lierre is, that the enemy being taken as it were in the fact, and before they had carried off the booty, it was not looked upon as having absolutely become their property, or been lost to the inhabitants. Thus, at sea, a ship taken by the enemy may be retaken and delivered by other ships of her own party, as long as she has not been carried into some port, or into the midst of a fleet: her fate is not decided, nor is the owner's property irrecoverably lost, until the ship be in a place of safety with regard to the enemy who has taken her, and entirely in his power. But the ordinances of every state may make different regulations on this head between the citizens,3 with a view either to prevent disputes, or to encourage armed vessels to retake merchant ships that have fallen into the enemy's hands.
The justice or injustice of the cause does not here become an object of consideration. There would be no stability in the affairs of mankind, no safety in trading with nations engaged in war, if we were allowed to draw a distinction between a just and an unjust war, so as to attribute lawful effects to the one which we denied to the other. It would be opening a door to endless discussions and quarrels. This reason is of such weight, that, on account of it, the effects of a public war, at least with regard to movables, have been allowed to expeditions which deserved no other name than that of predatory enterprises, though carried on by regular armies. When, after the wars of the English in France, the grandes Compagnies ranged about Europe, sacking and pillaging wherever they came, none of the sufferers was ever known to claim the booty which those plunderers had carried off and sold. At present, it would be in vain to claim a ship taken by the Barbary corsairs, and sold to a third party, or retaken from the captors; though it is very improperly that the piracies of those barbarians can be considered as acts of regular war. We here speak of the external right: the internal right and the obligations of conscience undoubtedly require, that we should restore to a third party the property we recover from an enemy who had despoiled him of it in an unjust war, — provided he can recognise that property, and will defray the expenses we have incurred in recovering it. Grotius quotes many instances of sovereigns and commanders who have generously restored such booty, even without requiring any thing for their trouble or expense.4 But such conduct is pursued only in cases where the booty has been recently taken. It would be an impracticable task, scrupulously to seek out the proprietors of what has been captured a long time back; and moreover they have, no doubt, relinquished all their right to things which they had no longer any hope of recovering. Such is the usual mode of thinking with respect to captures in war, which are soon given up as irrecoverably lost.
Immovable possessions, lands, towns, provinces, &c., become the property of the enemy who makes himself master of them: but it is only by the treaty of peace, or the entire submission and extinction of the state to which those towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect.
Thus, a third party cannot safely purchase a conquered town or province, till the sovereign from whom it was taken has renounced it by a treaty of peace, or has been irretrievably subdued, and has lost his sovereignty: for, while the war continues, — while the sovereign has still hopes of recovering his possessions by arms, — is a neutral prince to come and deprive him of the opportunity by purchasing that town or province from the conqueror? The original proprietor cannot forfeit his rights by the act of a third person; and if the purchaser be determined to maintain his purchase, he will find himself involved in the war. Thus, the king of Prussia became a party with the enemies of Sweden, by receiving Stettin from the hands of the king of Poland and the czar, under the title of sequestration.5 But, when a sovereign has, by a definitive treaty of peace, ceded a country to the conqueror, he has relinquished all the right he had to it; and it were absurd that he should be allowed to demand the restitution of the country by a subsequent conqueror, who wrests it from the former, or by any other prince, who has purchased it, or received it in exchange, or acquired it by any title whatever.
The conqueror, who takes a town or province from his enemy, cannot justly acquire over it any other rights than such as belonged to the sovereign against whom he has taken up arms. War authorizes him to possess himself of what belongs to his enemy: if he deprives him of the sovereignty of that town or province, he acquires it such as it is, with all its limitations and modifications. Accordingly, care is usually taken to stipulate, both in particular capitulations and in treaties of peace, that the towns and countries ceded shall retain all their liberties, privileges, and immunities. And why should they be deprived of them by the conqueror, on account of his quarrel with their sovereign? Nevertheless, if the inhabitants have been personally guilty of any crime against him, he may, by way of punishment, deprive them of their rights and privileges. This he may also do if the inhabitants have taken up arms against him, and have thus directly become his enemies. In that case, he owes them no more than what is due from a humane and equitable conqueror to his vanquished foes. Should he purely and simply incorporate them with his former states, they will have no cause of complaint.
Hitherto I evidently speak of a city or a country which is not simply an integrant part of a nation, or which does not fully belong to a sovereign, but over which that nation or that sovereign has certain rights. If the conquered town or province fully and perfectly constituted a part of the domain of a nation or sovereign, it passes on the same footing into the power of the conqueror. Thenceforward united with the new state to which it belongs, — if it be a loser by the change, that is a misfortune which it must wholly impute to the chance of war. Thus if a town which made part of a republic or a limited monarchy, and enjoyed a right of sending deputies to the supreme council or the general assembly of the states, be justly conquered by an absolute monarch, she must never more think of such privileges: they are what the constitution of the new state to which she is annexed does not permit.
In the conquests of ancient times, even individuals lost their lands. Nor is it matter of surprise that in the first ages of Rome such a custom should have prevailed. The wars of that era were carried on between popular republics and communities. The state possessed very little, and the quarrel was in reality the common cause of all the citizens. But at present war is less dreadful in its consequences to the subject: matters are conducted with more humanity: one sovereign makes war against another sovereign, and not against the unarmed citizens. The conqueror seizes on the possessions of the state, the public property, while private individuals are permitted to retain theirs. They suffer but indirectly by the war; and the conquest only subjects them to a new master.
But if the entire state be conquered, if the nation be subdued, in what manner can the victor treat it, without transgressing the bounds of justice? What are his rights over the conquered country? Some have dared to advance this monstrous principle, that the conqueror is — that he may dispose of it as his property, — that he may treat it as he pleases, according to the common expression of treating a state as a conquered country; and hence they derive one of the sources of despotic government. But, disregarding such writers, who reduce men to the state of transferable goods or beasts of burthen, — who deliver them up as the property of patrimony of another man, — let us argue on principles countenanced by reason and conformable to humanity.
The whole right of the conqueror is derived from justifiable self-defence (§§ 3, 26, 28), which comprehends the support and prosecution of his rights. When, therefore, he has totally subdued a hostile nation, he undoubtedly may, in the first place, do himself justice respecting the object which had given rise to the war, and indemnify himself for the expenses and damages he has sustained by it: he may, according to the exigency of the case, subject the nation to punishment, by way of example; he may even, if prudence so require, render her incapable of doing mischief with the same ease in future. But, for the attainment of these different objects, he is to prefer the gentlest methods, — still bearing in mind that the doing of harm to an enemy is no further authorized by the law of nature, than in the precise degree which is necessary for justifiable self-defence, and reasonable security for the time to come. Some princes have contented themselves with imposing a tribute on the conquered nation, — others, with depriving her of some of her rights, taking from her a province, or erecting fortresses to keep her in awe: others, again, confining their quarrel to the sovereign alone, have left the nation in the full enjoyment of all their rights, — only setting over her a new sovereign of their own appointment.
But if the conqueror thinks proper to retain the sovereignly of the conquered state, and has a right to retain it, the same principles must also determine the manner in which he is to treat that state. If it is against the sovereign alone that he has just cause of complaint, reason plainly evinces that he acquires no other rights by his conquest than such as belonged to the sovereign whom he has dispossessed: and, on the submission of the people, he is bound to govern than according to the laws of the state. If the people do not voluntarily submit, the state of war still subsists.
A conqueror who has taken up arms, not only against the sovereign, but against the nation herself, and whose intention it was to subdue a fierce and savage people, and once for all to reduce an obstinate enemy, — such a conqueror may with justice lay burthens on the conquered nation, both as a compensation for the expenses of the war, and as a punishment. He may, according to the degree of indocility apparent in their disposition, govern them with a tighter rein, so as to curb and subdue their impetuous spirit: he may even, if necessary, keep them for some time in a kind or slavery. But this forced condition ought to cease from the moment the danger is over, — the moment the conquered people are become citizens: for then the right of conquest is at an end, so far as relates to the pursuit of those rigorous measures, since the conqueror no longer finds it necessary to use extraordinary precautions for his own defence and safety. Then at length every thing is to be rendered conformable to the rules of a wise government and the duties of a good prince.
When a sovereign, arrogating to himself the absolute disposal of a people whom he has conquered, attempts to reduce them to slavery, he perpetuates the state of warfare between that nation and himself. The Scythians said to Alexander the Great, "There is never any friendship between the master and slave: in the midst of peace the rights of war still subsist."6 Should it be said, that in such a case there may be peace, and a kind of compact by which the conqueror consents to spare the lives of the vanquished, on condition that they acknowledge themselves his slaves, — he who makes such an assertion, is ignorant that war gives no right to take away the life of an enemy who has laid down his arms and submitted (§ 140). But let us not dispute the point: let the man who holds such principles of jurisprudence, keep them for his own use and benefit: he well deserves to be subject to such a law. But men of spirit, to whom life is nothing, less than nothing, unless sweetened with liberty, will always conceive themselves at war with that oppressor, though actual hostilities are suspended on their part through want of ability. We may, therefore, safely venture to add, that if the conquered country is to be really subject to the conqueror as to its lawful sovereign, he must rule it according to the ends for which civil government has been established. It is generally the prince alone who occasions the war, and consequently the conquest. Surely it is enough that an innocent people suffer the calamities of war: must even peace itself become fatal to them? A generous conqueror will study to relieve his new subjects, and mitigate their condition: he will think it his indispensable duty. "Conquest (says an excellent man) ever leaves behind it an immense debt, the discharge of which is absolutely necessary to acquit the conqueror in the eye of humanity."7
It fortunately happens, that, in this particular as in every thing else, sound policy and humanity are in perfect accord. What fidelity, what assistance, can you expect from an oppressed people? Do you wish that your conquest may prove a real addition to your strength, and be well affected to you? — treat it as a father, as a true sovereign. I am charmed with the generous answer recorded of an ambassador from Privernum. Being introduced to the Roman senate, he was asked by the consul — "if we show you clemency, what dependence can we have on the peace you are come to sue for?" "If (replied the ambassador) you grant it on reasonable conditions, it will be safe and permanent: otherwise, it will not last long." Some took offence at the boldness of this speech; but the more sensible part of the senate approved of the Privernian's answer, deeming it the proper language of a man and a freeman. "Can it be imagined (said those wise senators) that any nation, or even any individual, will longer continue in an irksome and disagreeable condition, than while compelled to submit to it? If those to whom you give peace receive it voluntarily, it may be relied on: what fidelity can you expect from those whom you wish to reduce to slavery?"8 "The most secure dominion," said Camillus, "is that which is acceptable to those over whom it is exercised."9
Such are the rights which the law of nature gives to the conqueror, and the duties which it imposes on him. The manner of exerting the one, and fulfilling the other, varies according to circumstances. In general, he ought to consult the true interests of his own state, and by sound policy to reconcile them, as far as possible, with those of the conquered country. He may, in imitation of the kings of France, unite and incorporate it with his own dominions. Such was the practice of the Romans: but they did this in different modes according to cases and conjunctures. At a time when Rome stood in need of an increase of population, she destroyed the town of Alba, which she feared to have as a rival: but she received all its inhabitants within her walls, and thereby gained so many new citizens. In after times the conquered cities were left standing, and the freedom of Rome was given to the vanquished inhabitants. Victory could not have proved so advantageous to those people as their defeat.
The conqueror may likewise simply put himself in the place of the sovereign whom he has dispossessed. Thus the Tartars have acted in China: the empire was suffered to subsist in its former condition, except that it fell under to dominion of a new race of sovereigns.
Lastly, the conqueror may rule his conquest as a separate state, and permit it to retain its own form of government. But this method is dangerous: it produces no real union of strength; it weakens the conquered country, without making any considerable addition to the power of the victorious state.
It is asked, to whom the conquest belongs, — to the prince who has made it, or to the state? This question ought never to have been heard of. Can the prince, in his character of sovereign, act for any other end than the good of the state? Whose are the forces which he employs in his wars? Even if he made the conquest at his own expense, out of his own revenue or his private and patrimonial estates, does he not make use of the personal exertions of his subjects in achieving it? Docs he not shed their blood in the contest? But, supposing even that he were to employ foreign or mercenary troops, does he not expose his nation to the enemy's resentment? Does he not involve her in the war? And shall he alone reap all the advantages of it? Is it not for the cause of the state, and of the nation, that he takes up arms? The nation, therefore, has a just claim to all the rights to which such war gives birth.
If the sovereign embarks in a war, of which his own personal interests are the sole ground, — as, for instance, to assert his right of succession to a foreign sovereignty, — the question then assumes a new face. In this affair the state is wholly unconcerned: but then the nation should be at liberty either to refuse engaging in it, or to assist her prince, at her own option. If he is empowered to employ the national force in support of his personal rights, he should, in such case, make no distinction between these rights and those of the state. The French law, which annexes to the crown all acquisitions made by the king, should be the law of all nations.(171)
It has been observed (§ 196) that we may be obliged, if not externally, yet in conscience, and by the laws of equity, to restore to a third party the booty we have recovered out of the hands of an enemy who had taken it from him in an unjust war. The obligation is more certain and more extensive, with regard to a people whom our enemy had unjustly oppressed. For a people thus spoiled of their liberty, never renounce the hope of recovering it. If they have not voluntarily incorporated themselves with the state by which they have been subdued, — if they have not freely aided her in the war against us, — we certainly ought so to use our victory, as not merely to give them a new master, but to break their chains. To deliver an oppressed people is a noble fruit of victory: it is a valuable advantage gained, thus to acquire a faithful friend. The canton of Schweitz, having wrested the country of Glaris from the house of Austria, restored the inhabitants to their former liberties; and Glaris, admitted into the Helvetic confederacy, formed the sixth canton.10 (172)
(168) See further, as to the effect of capture, as to movables and immovables, and the doctrine of postliminium, and the principle on which it is in general founded, post. 392, §§ 204, 205; and the other authorities and modern decisions, Marten's L.N. 290-293; 1 Chitty's Commercial Law, 414-435; and Id. Index, tit. Postliminium.
As to removables captured in a land war, some writers on the law of nations state it to be merely requisite that the property shall have been twenty-four hours in the enemy's power, after which they contend, that the right of postliminium is completely divested, so that immediately after the expiration of that time, they may be alienated to neutrals, as indefeasible property. Others contend, that the property must have been brought infra Præsidia, that is, within the camps, towns, ports, or fleets of the enemy; and others have drawn lines of an arbitrary nature. Marten's L.N. 290-1; 2 Wooddeson's Vin. L. 444, § 34.
With respect to maritime captures, a more absolute and certain species of possession has been required. In the case of Flad Oyen. 1 Rob. Rep. 134; Atcheson's Rep. 8, n. 9; and 8 Term Rep. 270, in notes. Sir Wm Scott said, "By the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary; and a neutral purchaser in Europe, during war, does look to the legal sentence of condemnation as one of the title-deeds of the ship, if he buys a prize-vessel. I believe there is no instance in which a man, having purchased a prize-vessel of a belligerent, has thought himself secure in making that purchase, merely because that ship had been in the enemy's possession twenty-four hours, or carried infra præsidia. At any rate, the rule of condemnation is the general rule applied by England." So that, by the general law of nations, if a vessel be retaken before condemnation, by any ship of the nation of which the original owner is a subject, although even four years after the capture he has a right to have the same restored to him, subject to his paying certain salvage to the re-captor. See Goss and Withers, 2 Burr. 683; Constant Mary, 3 Rob. Rep. 97; The Huldah Id. 235 Assivedeo v. Cambridge, 10 Mod. 79. And such sentence of condemnation must also have been pronounced by a court of competent jurisdiction, and in the country either of the enemy himself, or of some ally, and not in a neutral country. Flad Oyen, 1 Rob. Rep. 134; Havelock v. Rockwood, Atchesons Rep. 8, n. 9.
But if, after the time of the enemy's transferring his prize to a neutral, a peace be concluded between that enemy and the state from whose subject the prize was taken, then the transfer to the neutral becomes valid and perfect even though there was no legal condemnation, for, as observed by Vattel the right of postliminium no longer exists after the conclusion of peace. And see Sir W. Scott's decision on that point, in Schooner Sophie, 6 Rob. Rep. 142.
In cases arising between British subjects with one another, and also in cases arising between such subjects and those of her allies, peculiar modifications of the general law of nations were introduced or acknowledged by Great Britain. Thus, it was established by several acts of parliament (13 Goo. 2, c. 4; 17 Geo. 2, c. 34; 19 Geo, 2, c. 34; 43 Geo. 3, c. 160. and see Hamilton v. Mendes, 2 Burr. 1198; 1 Bla. Rep 27), that the maritime right of postliminium shall subsist even to the end of the war; and, therefore, the ships or goods of the subjects of this country, taken at sea by an enemy, and afterwards retaken, even at any indefinite period of time, and whether before or after sentence of condemnation, are in general to be restored to the original proprietors, but subject to certain specified exceptions, and, in general, also subject to the payment of salvage to the re-captor. 1 Chitty's Com L. 434-6; and see Franklin. 4 Rob. Rep. 147; 1 Edward's Rep, 279, the Two Friends, 1 Rob. Rep. 271; Cornu v. Blackburne, Dougl. 648. {Muller v. The Resolution, 2 Dall. Rep. 1.}
In the absence of express stipulations with allies. Sir Wm. Scott observed, "I understand that the actual rule of the English maritime law is this: — viz., that the maritime law of England having adopted a most liberal rule of restitution with respect to the re-captured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal principle. In such a case it adopts their rule, and treats them according to their own measure of justice." — Santa Cruz, 1 Rob. Rep. 49. — C.
1. Grotius, de Jure Belli et Pacis, lib. iii. cap. vi. § iii. n. vii.
2. See Grotius, ibid, and in the text.
3. Grotius, ibid.
4. Grotius, lib. iii. cap. xvi.
(169) See further as to postliminium, post, chap. xiv; and the case of Bredes Lust, 5 Rob. Rep. 233-251. — C.
5. By the treaty of Schwedt, October 6, 1713.
(170) When a country has been conquered by the British, or any other arms, and having become a dominion of the king in right of his crown, the conquered inhabitants, once received by the conqueror, become his subjects, and are universally to be regarded in that light, and not as enemies or aliens. Elphinstone v. Bedreechund, Knapp's Re, 338; Campbell v. Hall, 23 State Trials, p. 322; and Cowper, 205; and Fabrigas v. Moslyn, Cowp. Rep. 165.
But statutes previously passed do not in general extend to a conquered country: see 2 Merivale's Rep. 156; 4 Modern Rep. 222; 1 Chitty's Com. L. 639, 640; 1 Bla. Com. 102-3. As to the application of the laws of England to her foreign possessions, see Gardiner v. Pell, 1 Jac. & Walk. 27; and Id. 30, n. (a) — C.
6. Inter dominum et servum nulla amicitia est: etiam in pace, belli tamen jura servantur. — Q Curt. lib. vii. cap. viii.
7. Montesquieu, in his Spirit of Laws.
8. Quid, si pœnam (inquit consul) remittimus vobis, qualem nos pacem vobiscum habituros speremus? Si bonam dederitis, inquit, et fidam et perpetuam; si malam, haud diuturnam. Tum vero minari, nec id ambigue Privernatem, quidam, et illis vocibus ad rebellandum incitari pacatos populos. Pars melior senatus ad meliora responsa trahere, et dicere viri et liberi vocem auditam: an credi posse ullum populum, aut hominem denique, in ea conditione cujus eum pœniteat, diutius quam necesse sit, mansurum? Ibi pacem esse fidam, ubi voluntarii pacati sint; neque eo loco, ubi servitutem esse velint, fidem sperandam esse. — Tit. Liv. lib viii. cap. xxi.
9. Certe id firmissimum longe imperium est, quo obdedientes gaudent. — Tit. Liv. lib. viii. cap. xiii.
(171) Ante, 365, s. 1664, and note (165).
10. Histoire de la Confederation Helvetique, par M. de Watteville, liv. iii. under the year 1351.
(172) As nations are independent of each other, and acknowledge no superior (ante, in several places), there is, unfortunately, no sovereign power among nations to uphold or enforce the international law; no tribunal to which the oppressed can appeal, as of right against the oppressor; and consequently, if either nation refuse to give effect to the established principles of international law, the only redress is by resorting to arms, and enforcing the performance of the national obligation and this is the principle of just war. So, there is no regular international or even municipal court to adjudicate upon questions of lawful capture or prize. And in Great Britain, no municipal court, whether of common law or equity, can take cognizance of any questions arising out of hostile seizure; nor can any question respecting the infraction of treaties be directly agitated before courts of law, any more than questions respecting booty acquired in a continental inland war. In general, in all states, this is a jurisdiction assumed only by the sovereign in whom the right or power of declaring war and peace, and modifying their terms, is vested, excepting in some cases of particular facts, where the king has thought fit to act with the concurrence of his nation at large, instead of proceeding only upon his prerogative. In Great Britain, the king usually, by a special commission, delegates his power to decide upon question of capture and prize to the chief judge of the Admiralty Court, but quite separate from his ordinary jurisdiction, with an appeal to the Privy Council; and before that tribunal alone con any question of capture or prize be discussed; (Elphinstone v. Bedreechund, Knapp's Rep. Privy Council, 316 to 361; Le Caux v. Eden, Dougl. 594; Hill v. Reardon, 2 Russell's Rep. 608;) and not in an action at law or court of equity, excepting in the case of a trust. Id. ibid; and Faith v. Pearson, Holt's Cas. Ni. Pri. 113. Therefore, where the members of the provisional government of a recently conquered country seized the property of a native of it, who had been refused the benefit of the articles of capitulation of a fortress of which he had been the governor, but had been permitted to reside, under military surveillance, in his own house in the city in which the seizure was made, and which was at a considerable distance from the scene of actual hostilities; it was held by the House of Lords, in England, that the seizure having been made flagrante et nondum cessante bello, must be regarded in the light of a hostile seizure, and that a municipal court had no jurisdiction on the subject; (Elphinstone v. Bedreechund, Knapp's Rep. 316 to 361; and see Hill v. Reardon, 2 Sim. & Stu. 431; but which on one point, respecting a trust, was afterwards overruled in Chancery; Id. 2 Russ. 608;) and per Lord Tentereden —; We think the proper character of the transaction was that of a hostile seizure, made, if not flagrante, yet nondum cessante bello, regard being had both to the time, the place, and the person; and, consequently, that the municipal court had no jurisdiction to adjudge upon the subject: but that, if any thing was done amiss, — recourse could only be had to the government for redress. We shall therefore recommend it to his majesty to reverse the judgment of the Supreme Court of Bombay ." — id. page 360-1. — Again, it has been held that the circumstances that a recently conquered city, where a seizure of the property of a native is made by the members of a provisional government during time of war, had been some months previously in the undisturbed possession of that government, and that courts for the administration of justice were then sitting in it, under the authority of that government, do not alter the character of the transaction, so as to make it a subject of cognisance by a municipal court." — id, 316. — And there is no distinction, in this respect, between the public and private property of an absolute monarch; and, therefore, money in the hands of the banker of an absolute monarch, whose territory has been conquered by the British, may be recovered from the banker, on an information, on behalf of the crown. Advocate-General of Bombay v. Amerchund, Knapp's Rep. 329, note; Elphinstone v. Bedreechund, Knapp's Rep. 357.
As the capture, in general, belongs to the sovereign of the state (although, by municipal regulations, the actual captors may acquire some subordinate rights), it also follows that no British subject can maintain an action against the captor. Caux v. Eden, 2 Dougl. 573. In a state resulting from a state of war, if property be seized under an erroneous supposition that it belongs to the enemy, it may be liberated by the proper authorities; but no action can be maintained against the party who has taken it, in a court of law. Caux v. Eden, 2 Dougl. 573; Elphinstone v. Bedreechund, Knapp's Rep. 357. If an English naval commander seize any movable as enemies' property, that turns out clearly to be British property, he forfeits his prize to the Prize Court (sometimes confounded with the Court of Admiralty), and that court awards the return of it to the party from whom it was taken, The Court of Admiralty is the proper tribunal for the trial of questions of prize or no prize, and it exercises this jurisdiction as a court of prize, under a commission from his majesty: and if it makes an unsatisfactory determination, an appeal lies to his majesty in council; for, the king reserves the ultimate right to decide on such questions by his own authority, and does not commit their determination to any municipal court of justice.
Booty taken under the colour of military authority, falls under the same rule. If property be taken by an officer under the supposition that it is the property of a hostile state, or of individuals, which ought to be confiscated, no municipal court can judge of the propriety or impropriety of the seizure: it can be judged of only by an authority delegated by his majesty, and by his majesty, ultimately, assisted by the lords in council. There are no direct decisions on such questions, because, as was stated by Lord Mansfield, in Lindo v. Rodney, they are cases of rare occurrence. Elphinstone v. Bedreechund, Knapp's Rep. 340, 357-8; Caux v. Eden. Dougl. 592; Lindo v. Rodney, Id. 313.
For these reasons, it is usual, when questions of importance between two sovereigns, or their subjects, arise, by particular treaty, to constitute a tribunal for that special purpose; and municipal statutes have been passed in England in aid of such treaty. Thus, by additional articles of the definitive treaty of peace between Great Britain and France, of the 30th May 1814, certain conventions were made for indemnifying British subjects for the confiscation of their property by the French revolutionary government, and certain commissioners were appointed between the two countries, to examine and decide upon such British claims; and the statute 59 Geo., 3, c. 51, was passed with the same object; and such claims were adjudicated upon between the two countries. It was held, however, that these conventions and treaties and the act for carrying the same into effect, did not exclude the jurisdiction of a court of equity to examine and enforce equities attaching upon the compensation in the hands of the person in whose favour the award of the commissioners had been made; (Hill v. Reardon, 2 Russell's Rep. 609, overruling S.C. in 2 Sim. & Stu. 437;) and it was holden that, where a person, in whose favour an adjudication under such conventions has been made by the commissioners or by the Privy Council is affected by a trust or by fraud, a court of equity has jurisdiction to enforce the trust or relieve against the fraud (id. ibid.); and the same principle would, no doubt, be extended to cases of capture or prize. — C.
THE right of postliminium is that in virtue of which persons and things taken by the enemy are restored to their former state, on coming again into the power of the nation to which they belonged.(174)
The sovereign is bound to protect the persons and property of his subjects, and to defend them against the enemy. When, therefore, a subject, or any part of his property, has fallen into the enemy's possession, should any fortunate event bring them again into the sovereign's power, it is undoubtedly his duty to restore them to their former condition, — to re-establish the persons in all their rights and obligations, to give back the effects to the owners, — in a word, to replace every thing on the same footing on which it stood previous to the enemy's capture.
The justice or injustice of the war makes no difference in this case, — not only because, according to the voluntary law of nations, the war, as to its effects, is reputed just on both sides, but likewise because war, whether just or not, is a national concern; and, if the subjects who fight or suffer in the national cause, should, after they have, either in their persons or their property, fallen into the enemy's power, be, by some fortunate incident, restored to the hands of their own people, there is no reason why they should not be restored to their former condition. It is the same as if they had never been taken. If the war be just on the part of their nation, they were unjustly captured by the enemy; and thus nothing is more natural than to restore them as soon as it becomes possible. If the war be unjust, they are under no greater obligation to suffer in atonement for its injustice than the rest of the nation. Fortune brings down the evil on their heads when they are taken: she delivers them from it when they escape. Here, again, it is the same as if they never had been captured. Neither their own sovereign, nor the enemy, has any particular right over them. The enemy has lost by one accident what he had gained by another.
Persons return, and things are recovered, by the right of postliminium, when, after having been taken by the enemy, they come again into the power of their own nation (§ 204). This right, therefore, takes effect as soon as such persons or things captured by the enemy fall into the hands of soldiers belonging to their own nation, or are brought back to the army, the camp, the territories of their sovereign, or the places under his command.
Those who unite with us to carry on a war are joint parties with us: we are engaged in a common cause; our right is one and the same; and they are considered as making but one body with us. Therefore, when persons or things captured by the enemy are retaken by our allies or auxiliaries, or in any other manner fall into their hands, this, so far as relates to the effect of the right, is precisely the same thing as if they were come again into our own power; since, in the cause in which we are jointly embarked, our power and that of our allies is but one and the same. The right of postliminium therefore takes effect among those who carry on the war in conjunction with us; and the persons and things recovered by them from the enemy are to be restored to their former condition.(175)
But, does this right take place in the territories of our allies? Here a distinction arises. If those allies make a common cause with us, — if they are associates in the war, — we are necessarily entitled to the right of postliminium in their territories as well as in our own: for, their state is united with ours, and together with it, continues but one party in the war we carry on. But if, as in our times is frequently the practice, an ally only gives us a stated succour stipulated by treaty, and does not himself come to a rupture with our enemy, between whose state and his own, in their immediate relations, peace continues to be observed, — in this case, only the auxiliaries whom he sends to our assistance are partakers and associates in the war; and his dominions remain in a state of neutrality.
Now, the right of postliminium does not take effect in neutral countries: for, when a nation chooses to remain neuter in a war, she is bound to consider it as equally just on both sides, so far as relates to its effects, — and, consequently, to look upon every capture made by either party as a lawful acquisition. To allow one of the parties, in prejudice to the other, to enjoy in her dominions the right of claiming things taken by the latter, or the right of postliminium, would be declaring in favour of the former, and departing from the line of neutrality.
Naturally, every kind of property might be recovered by the right of postliminium; and there is no intrinsic reason why movables should be excepted in this case, provided they can be certainly recognised and identified. Accordingly, the ancients, on recovering such things from the enemy, frequently restored them to their former owners.1 But the difficulty of recognising things of this nature, and the endless disputes which would arise from the prosecution of the owners' claims to them, have been deemed motives of sufficient weight for the general establishment of a contrary practice. To these considerations we may add, that, from the little hope entertained of recovering effects taken by the enemy and once carried to a place of safety, a reasonable presumption arises that the former owners have relinquished their property. It is therefore with reason that movables or booty are excepted from the right of postliminium, unless retaken from the enemy immediately after his capture of them; in which case, the proprietor neither finds a difficulty in recognising his effects, nor is presumed to have relinquished them. And, as the custom has once been admitted, and is now well established, there would be an injustice in violating it (Prelim, § 26). Among the Romans, indeed, slaves were not treated like other movable property: they, by the right of postliminium, were restored to their masters, even when the rest of the booty was detained. The reason of this is evident: for, as it was at all times easy to recognise a slave, and ascertain to whom he belonged, the owner, still entertaining hopes of recovering him, was not supposed to have relinquished his right.
Prisoners of war, who have given their parole, — territories and towns which have submitted to the enemy, and have sworn or promised allegiance to him, — cannot of themselves return to their former condition by the right of postliminium: for, faith is to be kept even with enemies (§ 174).
But if the sovereign retakes those towns, countries, or prisoners, who had surrendered to the enemy, he recovers all his former rights over them, and is bound to re-establish them in their pristine condition (§ 205). In this case, they enjoy the right of postliminium without any breach of their word, any violation of their plighted faith. The enemy loses by the chance of war a right which the chance of war had before given him. But, concerning prisoners of war, a distinction is to be made. If they were entirely free on their parole, the single circumstance of their coming again into the power of their own nation does not release them, — since, even if they had returned home, they would still have continued prisoners. The consent of the enemy who had captured them, or his total subjugation, can alone discharge them. But, if they have only promised not to effect their escape, — a promise which prisoners frequently make in order to avoid the inconveniences of a jail, — the only obligation incumbent on them is, that they shall not, of themselves, quit the enemy's country, or the place assigned for their residence. And if the troops of their party should gain possession of the place where they reside, the consequence is, that, by the right of war, they recover their liberty, are restored to their own nation, and reinstated in their former condition.(178)
When a town, reduced by the enemy's arms, is retaken by those of her own sovereign, she is, as we have above seen, restored to her former condition, and reinstated in the possession of all her rights. It is asked whether she thus recovers such part of her property as had been alienated by the enemy while he kept her in subjection. In the first place, we are to make a distinction between movable property not recoverable by the right of postliminium (§ 202), and immovables. The former belongs to the enemy who gets it into his hands, and he may irrecoverably alienate it. As to immovables, let it be remembered that the acquisition of a town taken in war is not fully consummated till confirmed by a treaty of peace, or by the entire submission or destruction of the state to which it belonged (§ 197). Till then, the sovereign of that town has hopes of retaking it, or of recovering it by a peace. And from the moment it returns into his power, he restores it to all its rights (§ 205), and consequently it recovers all its possessions, as far as in their nature they are recoverable. It therefore resumes its immovable possessions from the hands of those persons who have been so prematurely forward to purchase them. In buying them of one who had not an absolute right to dispose of them, the purchasers made a hazardous bargain; and if they prove losers by the transaction, it is a consequence to which they deliberately exposed themselves. But if that town had been ceded to the enemy by a treaty of peace, or was completely fallen into his power by the submission of the whole state, she has no longer any claim to the right of postliminium; and the alienation of any of her possessions by the conqueror is valid and irreversible; nor can she lay claim to them, or, in me sequel, some fortunate revolution should liberate her from the yoke of the conqueror. When Alexander made a present to the Thessalians of the sum due from them to the Thebans (see § 77), he was so absolutely master of the republic of Thebes, that he destroyed the city and sold the inhabitants.
The same decisions hold good with regard to the immovable property of individuals, prisoners or not, which has been alienated by the enemy while he was master of the country. Grotius proposes the question with respect to immovable property possessed in a neutral country by a prisoner of war.2 But, according to the principles we have laid down, this question is groundless: for, the sovereign who makes a prisoner in war, has no other right over him than that of detaining his person until the conclusion of the war, or until he be ransomed (§§ 148, &c.); but he acquires no right to the prisoner's property, unless he can seize on it. It is impossible to produce any natural reason why the captor should have a right to dispose of his prisoner's property, unless the prisoner has it about him.
When a nation, a people, a state, has been entirely subdued, it is asked whether a revolution can entitle them to the right of postliminium. In order justly to answer this question, there must again be a distinction of cases, If that conquered state has not yet acquiesced in her new subjection, has not voluntarily submitted, and has only ceased to resist from inability, — if her victor has not laid aside the sword of conquest and taken up the sceptre of peace and equity, — such a people are not really subdued: they are only defeated and oppressed; and, on being delivered by the arms of an ally, they doubtless return to their former situation (§ 207). Their ally cannot become their conqueror; he is their deliverer; and all the obligation of the party delivered is to reward him. If the subsequent conqueror, not being an ally to the state of which we speak, intends to keep it under his own jurisdiction as the reward of his victory, he puts himself in the place of the former conqueror, and becomes the enemy of the state which the other had oppressed: that state may lawfully resist him, and avail herself of a favourable opportunity to recover her liberty. If she had been unjustly oppressed, he who rescues her from the yoke of the oppressor ought generously to reinstate her in the possession of all her rights (§ 203).
The question changes with regard to a state which has voluntarily submitted to the conqueror. If the people, no longer treated as enemies, but as actual subjects, have submitted to a lawful government, they are thenceforward dependent on a new sovereign; or, being incorporated with the victorious nation, they become a part of it, and share its fate. Their former state is absolutely destroyed; all its relations, all its alliances are extinguished (Book II. § 203). Whoever, then, the new conqueror may be, that afterwards subdues the state to which these people are united, they share the destiny of that state, as a part shares the fate of the whole. This has been the practice of nations in all ages, — I say, even of just and equitable nations, — especially with regard to an ancient conquest. The most moderate conqueror confines his generosity in this particular to the restoration of the liberties of a people who have been but recently subdued, and whom he does not consider as perfectly incorporated, or well cemented by inclination, with the state which he has conquered.
If the people in question shake off the yoke and recover their liberty by their own exertions, they regain all their rights; they return to their former situation; and foreign nations have no right to determine whether they have shaken off the yoke of lawful authority, or burst the chains of slavery. Thus, the kingdom of Portugal, — which had been seized on by Philip II. king of Spain, under pretence of an hereditary right, but in reality by force and the terror of his arms, — re-established the independency of her crown, and recovered her former rights, when she drove out the Spaniards, and placed the duke of Braganza on the throne.
Provinces, town, and lands, which the enemy restores by the treaty of peace, are certainly entitled to the right of postliminium: for the sovereign, in whatever manner he recovers them, is bound to restore them to their former condition, as soon as he regains possession of them (§ 205). The enemy, in giving back a town at the peace, renounces the right he had acquired by arms. It is just the same as if he had never taken it; and the transaction furnishes no reason which can justify the sovereign in refusing to reinstate such town in the possession of all her rights, and restore her to her former condition.
But whatever is ceded to the enemy by a treaty of peace, is truly and completely alienated. It has no longer any claim to the right of postliminium, unless the treaty of peace be broken and cancelled.
And as things not mentioned in the treaty of peace remain in the condition in which they happen to be at the time when the treaty is concluded, and are, on both sides, tacitly ceded to the present possessor, it may be said, in general, that the right of postliminium no longer exists after the conclusion of the peace. That right entirely relates to the states of war.
Nevertheless, and for this very reason, there is an exception to be made here in favour of prisoners of war. Their sovereign is bound to release them at the peace (§ 154). But, if he cannot accomplish this, — if the fate of war compels him to accept of hard and unjust conditions, — the enemy, who ought to set the prisoners at liberty when the war is terminated, and he has no longer any thing to fear from them (§§ 150, 153), continues the state of war with respect to them, if he still detains them in captivity, and especially if he reduces them to slavery (§ 152). They have therefore a right to effect their escape from him, if they have an opportunity, and to return to their own country, equally as in war time; since, with regard to them, the war still continues. And in that case, the sovereign, from his obligation to protect them, is bound to restore them to their former condition (§ 205).
Further, those prisoners who are, without any lawful reason, detained after the conclusion of peace, become immediately free, when, once escaped from captivity, they have even reached a neutral country: for, enemies are not to be pursued and seized on neutral ground (§ 132); and whoever detains an innocent prisoner after the peace, continues to be his enemy. This rule should and actually does obtain among nations who do not admit and authorize the practice of enslaving prisoners of war.
It is sufficiently evident from the premises, that prisoners are to be considered as citizens who may one day return to their country: and, when they do return, it is the duty of the sovereign to re-establish them in their former condition. Hence it clearly follows, that the rights of every one of those prisoners, together with his obligations (or the rights of others over him), still subsist undiminished, — only the exertion of them is, for the most part, suspended during the time of his captivity.
The prisoner of war therefore retains a right to dispose of his property, particularly in case of death: and, as there is nothing in the state of captivity which can in this latter respect deprive him of the exercise of his right, the testament of a prisoner of war ought to be valid in his own country, unless rendered void by some inherent defect.
With nations which have established the indissolubility of the marriage ties, or have ordained that they should continue for life unless dissolved by the judgment of a court, those ties still subsist, notwithstanding the captivity of one of the parties, who, on his return home, is, by postliminium, again entitled to all his matrimonial rights.
We do not here enter into a detail of what the civil laws of particular nations have ordained with respect to the right of postliminium: we content ourselves with observing that such local regulations are obligatory on the subjects of the state alone, and do not affect foreigners. Neither do we here examine what has been settled on the head by treaties: those particular compacts establish merely a conventional right, which relates only to the contracting parties. Customs confirmed by long and constant use are obligatory on those nations who have given a tacit consent to them; and they are to be respected, when not contrary to the law of nature: but those which involve an infringement of that sacred law are faulty and invalid; and, instead of conforming to such customs, every nation is bound to use her endeavours to effect their abolition. Among the Romans the right of postliminium, was in force, even in times of profound peace, with respect to nations with which Rome had neither connections of friendship, lights of hospitality, nor alliance.3 This was because those nations were, as we have already observed, considered in some measure as enemies. The prevalence of milder manners has almost everywhere abolished that remnant of barbarism.
(173) See, in general, 1 Chitty's Commercial Law, 430 to 435; Id. Index, tit. Postliminium. — C.
(174) See ante, s. 196, page 385, note (168), as to movables and ships. — C.
(175) As to the general rule in the absence of treaty, see Santa Cruz, 1 Rob. Rep. 49; ante, 385, n. (168). But, in general, the precise rule is fixed by treaty between allies. Id ibid — C.
(176) As to movables and ships, ante, 384, n. — C.
1. See several instances in Grotius, book iii, ch. xvi § 2.
(177) In general, as regards countries of persons taken by a belligerent state, who were not the subjects of that state during any preceding part of the same war, a different rule prevails than that laid down by Vattel, sect, 211; for, the law of postliminium implies that the party claiming it returns to his previous character. And he who, during the whole war, has been the subject of the enemy alone, must be considered, when he falls into the hands of the rival state, not as returning to a previous character, but as acquiring a character absolutely new. Upon this principle was decided an important question in the case of Boedes Lust, 5 Rob. Rep. 233; and on the same principle it was established that, if a neutral have but just set his foot on the colony of an enemy for a few hours before its capture; but if it be proved that he went there for the purpose of settling, then his property will be subject to condemnation, as if he were a native enemy. And see the Dianna. 5 Rob. Rep. 60. — C.
(178) See note (177) ante.
2. Lib. iii. cap. ix. § vi.
3. Digest, lib. xlix. de Capt. et Postlim. leg. v. § ii.
THE right of making war, as we have shown in the first chapter of this book, solely belongs to the sovereign power, which not only decides whether it be proper to undertake the war, and to declare it, but likewise directs all its operations, as circumstances of the utmost importance to the safety of the state. Subjects, therefore, cannot of themselves take any steps in this affair; nor are they allowed to commit any act of hostility without orders from their sovereign. Be it understood, however, that under the head of "hostilities," we do not mean to include self-defence. A subject may repel the violence of a fellow-citizen when the magistrate's assistance is not at hand; and with much greater reason may he defend himself against the unexpected attacks of foreigners.
The sovereign's order, which commands acts of hostility, and gives a right to commit them, is either general or particular. The declaration of war, which enjoins the subjects at large to attack the enemy's subjects, implies a general order. The generals, officers, soldiers, privateers-men, and partisans, being all commissioned by the sovereign, make war by virtue of a particular order.
But, though an order from the sovereign be necessary to authorize the subjects to make war, that necessity wholly results from the laws essential to every political society, and not from any obligation relative to the enemy. For, when one nation takes up arms against another, she from that moment declares herself an enemy to all the individuals of the latter, and authorizes them to treat her as such. What right could she have in that case to complain of any acts of hostility committed against her by private persons without orders from their superiors? The rule, therefore, of which we here speak, relates rather to public law in general, than to the law of nations properly so called, or to the principles of the reciprocal obligations of nations.
If we confine our views to the law of nations, considered in itself, — when once two nations are engaged in war, all the subjects of the one may commit hostilities against those of the other, and do them all the mischief authorized by the state of war. But, should two nations thus encounter each other with the collective weight of their whole force, the war would become much more bloody and destructive, and could hardly be terminated otherwise than by the utter extinction of one of the parties. The examples of ancient wars abundantly prove the truth of this assertion to any man who will for a moment recall to mind the first wars waged by Rome against the popular republics by which she was surrounded. It is therefore with good reason that the contrary practice has grown into a custom with the nations of Europe, — at least with those that keep up regular standing armies or bodies of militia. The troops alone carry on the war, while the rest of the nation remain in peace. And the necessity of a special order to act is so thoroughly established, that, even after a declaration of war between two nations, if the peasants of themselves commit any hostilities, the enemy shows them no mercy, but hangs them up as he would so many robbers or banditti. The crews of private ships of war stand in the same predicament: a commission from their sovereign or admiral can alone, in case they are captured, insure them such treatment as is given to prisoners taken in regular warfare.
In declarations of war, however, the ancient form is still retained, by which the subjects in general are ordered, not only to break off all intercourse with the enemy, (179) but also to attack him. Custom interprets this general order. It authorizes, indeed, and even obliges every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands; but it does not invite the subjects to undertake any offensive expedition without a commission or particular order.
There are occasions, however, when the subjects may reasonably suppose the sovereign's will, and act in consequence of his tacit command. Thus, although the operations of war are by custom generally confined to the troops, if the inhabitants of a strong place, taken by the enemy, have not promised or sworn submission to him, and should find a favourable opportunity of surprising the garrison, and recovering the place for their sovereign, they may confidently presume that the prince will approve of this spirited enterprise. And where is the man that shall dare to censure it? It is true, indeed, that, if the townsmen miscarry in the attempt, they will experience very severe treatment from the enemy. But this does not prove the enterprise to be unjust, or contrary to the laws of war. The enemy makes use of his right, of the right of arms, which authorizes him to call in the aid of terror to a certain degree, in order that the subjects of the sovereign
with whom he is at war may not be willing to venture on such bold undertakings, the success of which might prove fatal to him. During the last war, the inhabitants of Genoa suddenly took up arms of their own accord, and drove the Austrians from the city: and the republic celebrates an annual commemoration of that event by which she recovered her liberty.
Persons fitting out private ships to cruise against the enemy acquire the property of whatever captures they make, as a compensation for their disbursements, and for the risks they run: but they acquire it by grant from the sovereign, who issues out commissions to them. The sovereign allows them either the whole or a part of the capture: this entirely depends on the nature of the contract he has made with them.
As the subjects are not under an obligation of scrupulously weighing the justice of the war, which indeed they have not always an opportunity of being thoroughly acquainted with, and respecting which they are bound, in case of doubt, to rely on the sovereign's judgment (§ 187), — they unquestionably may with a safe conscience serve their country by fitting out privateers, unless the war be evidently unjust. But, on the other hand, it is an infamous proceeding on the part of foreigners, to take out commissions from a prince, in order to commit piratical depredations on a nation which is perfectly innocent with respect to them. The thirst of gold is their only inducement;
nor can the commission they have received efface the infamy of their conduct, though it screens them from punishment. Those alone are excusable, who thus assist a nation whose cause is undoubtedly just, and that has taken up arms with no other view than that of defending herself from oppression. They would even deserve praise for their exertions in such a cause, if the hatred of oppression, and the love of justice, rather than the desire of riches, stimulated them to generous efforts, and induced them to expose their lives or fortunes to the hazards of war.
The noble view of gaining instruction in the art of war, and thus acquiring a greater degree of ability to render useful services to their country, has introduced the custom of serving as volunteers even in foreign armies; and the practice is undoubtedly justified by the sublimity of the motive. At present, volunteers, when taken by the enemy, are treated as if they belonged to the army in which they fight. Nothing can be more reasonable: they in fact join that army, and unite with it in supporting the same cause; and it makes little difference in the case, whether they do this in compliance with any obligation, or at the spontaneous impulse of their own free choice.
Soldiers can undertake nothing without the express or tacit command of their officers. To obey and execute, is their province, — not to act at their own discretion: they are only instruments in the hands of their commanders. Let it be remembered here, that, by a tacit order, I mean one which is necessarily included in an express order, or in the functions with which a person is intrusted by his superior. What is said of soldiers must also in a proper degree be understood of officers, and of all who have any subordinate command, wherefore, with respect to things which are not intrusted to their charge, they may both be considered as private individuals, who are not to undertake any thing without orders. The obligation of the military is even more strict, as the martial law expressly forbids acting without orders; and this discipline is so necessary that it scarcely leaves any room for presumption. In war, an enterprise which wears a very advantageous appearance, and promises almost certain success, may nevertheless be attended with fatal consequences. It would be dangerous, in such a case, to leave the decision to the judgment of men in subordinate stations, who are not acquainted with all the views of their general, and who do not possess an equal degree of knowledge and experience; it is therefore not to be presumed that he intends to let them act at their own discretion. Fighting without orders is almost always considered, in a military man, as fighting contrary to orders, or contrary to prohibition. There is, therefore, hardly any case, except that of self-defence, in which the soldiers and inferior officers may act without orders. In that one case, the orders may safely be presumed; or rather, the right of self-defence naturally belongs to every one, and requires no permission. During the siege of Prague, in the last war, a party of French grenadiers made a sally without orders and without officers, — possessed themselves of a battery, spiked a part of the cannon, and brought away the remainder into the city. The Roman severity would have punished those men with death. The famous example of the consul Manlius is well known, who, notwithstanding the victory gained by his son, caused capital punishment to be inflicted on him for having engaged the enemy without orders.1 But the difference of times and manners obliges a general to moderate such severity. The mareschal Bellisle publicly reprimanded those brave grenadiers, but secretly caused money to be distributed among them, as a reward for their courage and alacrity. At another famous siege in the same war, that of Coni, the private men of some battalions that were stationed in the fosses, made, of their own accord, during the absence of their officers, a vigorous sortie, which was attended with success. Baron Leutrum was obliged to pardon their transgression, lest he should damp an ardour on which the safety of the place entirely depended. Such inordinate impetuosity should nevertheless be checked as far as possible; since it may eventually be productive of fatal consequences. Avidius Cassius inflicted capital punishment on some officers of his army, who had, without orders, marched forth at the head of a handful of men, to surprise a body of three thousand enemies, and had succeeded in cutting them to pieces. This rigour he justified, by saying that there might have been an ambuscade, — dicens, evenire potiusse ut essent insidiœ, &c.2
Is the state bound to indemnify individuals for the damages they have sustained in war? We may learn from Grotius that authors are divided on this question.3 The damages under consideration are to be distinguished into two kinds, — those done by the state itself or the sovereign, and those done by the enemy. Of the first kind, some are done deliberately and by way of precaution, as, when a field, a house, or a garden, belonging to a private person, is taken for the purpose of erecting on the spot a town rampart, or any other piece of fortification, — or when his standing corn or his storehouses are destroyed, to prevent their being of use to the enemy. Such damages are to be made good to the individual, who should bear only his quota of the loss.(181) But there are other damages, caused by inevitable necessity, as, for instance, the destruction caused by the artillery in retaking a town from the enemy. These are merely accidents, — they are misfortunes which chance deals out to the proprietors on whom they happen to fall. The sovereign, indeed, ought to show an equitable regard for the sufferers, if the situation of his affairs will admit of it: but no action lies against the state for misfortunes of this nature, — for losses which she has occasioned, not wilfully, but through necessity and by mere accident, in the exertion of her rights. The same may be said of damages caused by the enemy. All the subjects are exposed to such damages: and woe to him on whom they fall! The members of a society may well encounter such risk of property, since they encounter a similar risk of life itself. Were the state strictly to indemnify all those whose property is injured in this manner, the public finances would soon be exhausted; and every individual in the state would be obliged to contribute his share in due proportion, — a thing utterly impracticable. Besides, these indemnifications would be liable to a thousand abuses, and there would be no end of the particulars. It is therefore to be presume that no such thing was ever intended by those who united to form a society.
But it is perfectly consonant to the duties of the state and the sovereign, and, of course, perfectly equitable, and even strictly just, to relieve, as far as possible, those unhappy sufferers who have been ruined by the ravages of war,(182) as likewise to take care of a family whose head and support has lost his life in the service of the state, There are many debts which are considered as sacred by the man who knows his duty, although they do not afford any ground of action against him.4
(179) Hence it is illegal to have any commercial intercourse with an enemy, or even to pay him a just debt, during war. Grotius, b. iii. c. iv. § 8; Bynkershoek, b. i. c. iii.; Dr. Phillimore on Licenses, 5; The Hoop, 1 Rob. Rep. 198; Potts v. Bell, 8 Term Rep. 548; Wilson v. Patteson, 7 Taunt. 439; 3 Merlv. R. 469; 2 Ves. & Bea. 323; {Scholefield v. Eichelberger. 7 Pet. S.C. Rep. 586.} To this general rule there are sometimes exceptions. {The U. States v. Barker, Paine's C.C. Rep. 157}. Thus Great Britain permitted commercial intercourse with some of her plantations, whilst under capture by the French, because she expected to recover them back. See observations in The Hoop, 1 Rob. Rep. 209; but these exceptions are in general carried on under orders in council and licenses. — C. (See The William Penn, 3 Wash. C.C. Rep. 4848.)
1. Til. Liv. lib. viii. cap. vii.
2. Volcatius Gallicanus, quoted by Grotius, book HI, chap. xviii. § i. n. 6.
(180) On the conclusion of the late war between Great Britain and France, it was stipulated that the latter should make compensation for the amount of the confiscations of British property, subject to certain qualifications; and commissioners were appointed by each state to examine and adjudicate upon the claims, and as regarded Great Britain, the regulating act, 59 G. 3, c. xxxi. was passed. See discussion in Hill v. Reardon, 2 Russell's Rep. 608. — C.
3. Lib. iii. cap. xx. § viii.
(181) It is legal to take possession of these for the benefit of the community, and no action lies for compensation, nor is any recoverable, unless given by act of parliament. 4 Term Rep. 382. — C.
(182) See note (180), p. 402.
4. It is in general the indispensable duty of every sovereign to adopt the most efficacious measures for the protection of his subjects engaged in war, in order that they may suffer by it as little as possible, instead of voluntarily exposing them to greater evils. During the wars in the Netherlands, Philip the Second prohibited the release or exchange of prisoners of war. He forbade the peasants, under pain of death, to pay any contributions with a view to purchase an immunity from pillage and conflagration;(183) and, under the same penalty, prohibited the use of safeguards and protections. In opposition to this barbarous ordinance, the states-general adopted measures fraught with consummate wisdom. They published an edict, in which, after having described the destructive consequences of the Spanish barbarity, they exhorted the Flemings to attend to their own preservation, and threatened to retaliate on all who should obey the cruel ordinance of Philip. By such conduct they put an end to the dreadful proceedings to which it had given birth. — Edit. A.D. 1797
(183) Our enactments against ransoming ships or property taken by an enemy are in the same spirit; (22 Geo. 2, c. 25); 43 Geo. 3, c. 165); Geo. 3, c. 72) Marshall on Insurance, 431; but exceptions in cases of extreme necessity may be allowed by the court of Admiralty. Id. Ibid.
WAR would become too cruel and destructive, were all intercourse between enemies absolutely broken off. According to the observation of Grotius,1 there still subsists a friendly intercourse in war, as Virgil2 and Tacitus3 have expressed it. The occurrences and events of war lay enemies under the necessity of entering into various conventions. As we have already treated in general of the observance of faith between enemies, it is unnecessary for us in this place to prove the obligation of faithfully acting up to those conventions made in war: it therefore only remains to explain the nature of them. Sometimes it is agreed to suspend hostilities for a certain time; and, if this convention be made but for a very short period, or only regards some particular place, it is called a cessation or suspension of arms. Such are those conventions made for the purpose of burying the dead after an assault or a battle, and for a parley, or a conference between the generals of the hostile armies. If the agreement be for a more considerable length of time, and especially if general, it is more particularly distinguished by the appellation of a truce. Many people use both expressions indiscriminately.
The truce of suspension of arms does not terminate the war; it only suspends its operations.
A truce is either partial or general. By the former, hostilities are suspended only in certain places, as between a town and the army besieging it. By the latter, they are to cease generally, and in all places, between the belligerent powers. Partial truces may also admit of a distinction with respect to acts of hostility, or to persons; that is to say, the parties may agree to abstain from certain acts of hostility during a limited time, or two armies may mutually conclude a truce or suspension of arms without regard to any particular place.
A general truce, made for many years, differs from a peace in little else than in leaving the question which was the original ground of the war still undecided. When two nations are weary of hostilities, and yet cannot agree on the point which constitutes the subject of their dispute, they generally have recourse to this kind of agreement. Thus, instead of peace, long truces only have usually been made between the Christians and the Turks, — sometimes from a false spirit of religion; at other times, because neither party were willing to acknowledge the other as lawful owners of their respective possessions.
It is necessary to the validity of an agreement, that it be made by one who possesses competent powers. Every thing done in war is done by the authority of the sovereign, who alone has the right of both of undertaking the war, and directing its operations, (§ 4) But, from the impossibility of executing every thing by himself he must necessarily communicate part of his power to his ministers and officers. The question, therefore, is, to determine what are the things of which the sovereign reserves the management in his own hands, and what those are which he is naturally presumed to intrust to the ministers of his will, to the generals and other officers employed in military operations. We have above (Book II. § 207) laid down and explained the principle which is to serve as a general rule on this subject. If the sovereign has not given any special mandate, the person commanding in his name is held to be invested with all the powers necessary for the reasonable and salutary exercise of his functions, — for every thing which naturally follows from his commission. Every thing beyond that is reserved to the sovereign, who is not supposed to have delegated a greater portion of his power than is necessary for the good of his affairs. According to this rule, a general truce can only be concluded by the sovereign himself, or by some person on whom he has expressly conferred a power for that purpose. For, it is by no means necessary to the success of the war, that a general should be invested with such an extensive authority: it would exceed the limits of his functions, which consist in directing the military operations in the place where he has the command, and not in regulating the general interests of the state. The conclusion of a general truce is a matter of so high importance, that the sovereign is always presumed to have reserved it in his own hands. So extensive a power suits only the viceroy or governor of a distant country, for the territories under him; and even in this case, if the truce be for a number of years, it is natural to suppose the sovereign's ratification necessary. The Roman consuls, and other commanders, had a power to grant general truces for the term of their commission; but, if that term was considerable, or the truce made for a longer time, it required the ratification of the senate and people. Even a partial truce, when for a long time, seems also to exceed the ordinary powers of a general; and he can only conclude it under a reservation of its being ratified by the sovereign authority.
But, as to partial truces for a short period, it is often necessary, and almost always proper, that the general should have a power to conclude them: — it is necessary, when he cannot wait for the sovereign's consent; it is proper on those occasions when the truce can only tend to spare the effusion of blood, and to promote the mutual advantage of the contracting parties. With such a power, therefore, the general or commander in chief is naturally supposed to be invested. Thus, the governor of a town, and the general besieging it, may agree on a cessation of arms, for the purpose of burying the dead, or of coming to a parley: they may even settle a truce for some months on condition that the town, if not relieved within that time, shall surrender, &c. Conventions of this kind only tend to mitigate the evils of war, and are not likely to prove detrimental to any one.
All these truces and suspensions of arms are concluded by the authority of the sovereign, who consents to some of them in his own person, and to others through the ministry of his generals and officers. His faith is pledged by such agreements, and he is bound to enforce their observance.
The truce binds the contracting parties from the moment of its being concluded, but cannot have the force of a law, with regard to the subjects on both sides, till it has been solemnly proclaimed: and, as an unknown law imposes no obligation, the truce does not become binding on the subjects until duly notified to them. Hence, if, before they can have obtained certain information of its being concluded, they commit any act contrary to it — any act of hostility — they are not punishable. But, as the sovereign is bound to fulfil his promises, it is incumbent on him to cause restitution to be made of all prizes taken subsequent to the period when the truce should have commenced. The subjects, who, through ignorance of its existence, have failed to observe it, are not obliged to offer any indemnification, any more than their sovereign, who was unable to notify it to them sooner; the non-observance of the truce, in this case, is merely an accident, not imputable to any fault on his part or on theirs. A ship being out at sea at the time when the truce is published, meets with a ship belonging to the enemy, and sinks her: as there is no guilt in this case, she is not liable to pay any damage. If she has made a capture of the vessel, all the obligation she lies under is to restore the prize, as she must not retain it in violation of the truce. But those who should, through their own fault, remain ignorant of the publication of the truce, would be bound to repair any damage they had caused, contrary to its tenor. The simple commission of a fault, and especially of a slight one, may, to a certain degree, be suffered to pass with impunity; and it certainly does not deserve to be punished with equal severity as a premeditated transgression: but it furnishes no plea against the obligation to repair the damages accruing. In order, as far as possible, to obviate every difficulty, it is usual with sovereigns, in their truces as well as in their treaties of peace, to assign different periods for the cessation of hostilities, according to the situation and distance of places.
Since a truce cannot be obligatory on the subjects unless known to them, it must be solemnly published in all the places where it is intended that it should be observed.
If any of the subjects, whether military men or private citizens, offend against the truce, this is no violation of the public faith; nor is the truce thereby broken. But the delinquents should be compelled to make ample compensation for the damage, and severely punished. Should their sovereign refuse to do justice, on the complaints of the party injured, he thereby becomes accessory to the trespass, and violates the truce.
Now, if one of the contracting parties, or any person by his order, or even with his simple consent, commits any act contrary to the truce, it is an injury to the other contracting party: the truce is dissolved; and the injured party is entitled immediately to take up arms, not only for the purpose of renewing the operations of the war, but also of avenging the recent injury offered to him.
Sometimes a penalty on the infractor of the truce is reciprocally stipulated; and then the truce is not immediately broken on the first infraction. If the party offending submits to the penalty, and repairs the damage, the truce still subsists, and the offended party has nothing further to claim. But, if an alternative has been agreed on, viz. that, in case of an infraction, the delinquent shall suffer a certain penalty, or the truce shall be broken, it is the injured party who has the choice of insisting on the penalty or taking advantage of his right to recommence hostilities: for, if this were left at the option of the infractor, the stipulation of the alternative would be nugatory, since, by refusing to submit to the penalty simply stipulated, he would break the compact, and thereby give the injured party a right to take up arms again. Besides, in cautionary clauses of this kind, the alternative is not supposed to be introduced in favour of him who fails in his engagements; and it would be absurd to suppose that he reserves to himself the advantage of breaking them by his infraction rather than undergo the penalty. He might as well break them at once openly. The only object of the penal clause is to secure the truce from being so easily broken; and there can be no other reason for introducing it with an alternative, than that of leaving to the injured party a right, if he thinks fit, to dissolve a compact from which the behaviour of the enemy shows him he has little security to expect.
It is necessary that the time of the truce be accurately specified, in order to prevent all doubt or dispute respecting the period of its commencement, and that of its expiration. The French language, extremely clear and precise, for those who know how to use it with propriety, furnishes expressions which bid defiance to the most subtle chicanery. The words "inclusively" and "exclusively" banish all ambiguity which may happen to be in the convention, with regard to the two terms of the truce — its beginning and end. For instance, if it be said that "the truce shall last from the first of March inclusively, until the fifteenth of April, also inclusively," there can remain no doubt; whereas, if the words had simply been, "from the first of March until the 15th of April," it might be disputed whether those two days, mentioned as the initial and final terms of the truce, were comprehended in the treaty or not: and indeed authors are divided on this question. As to the former of those two days, it seems, beyond all question, to be comprised in the truce: for, if it be agreed, that there shall be a truce from the first of March, this naturally means that hostilities shall cease on the first of March. As to the latter day, there is something more of doubt, — the expression "until" seeming to separate it from the time of the armistice. However, as we often say "until" such a day "inclusively," the word "until" is not necessarily exclusive, according to the genius of the language. And as a truce which spares the effusion of human blood, is no doubt a thing of a favourable nature, perhaps the safest way is to include in it the very day of the term. Circumstances may also help to ascertain the meaning: but it is very wrong not to remove all ambiguity, when it may be done by the addition of a single word.
In national compacts, the word "day" is to be understood of a natural day, since it is in this meaning that a day is the common measure of time among nations. The computation by civil days owes its origin to the civil law of each nation, and varies in different countries. The natural day begins at sunrise, and lasts twenty-four hours, or one diurnal revolution of the sun. If, therefore, a truce of a hundred days be agreed on, to being on the first of March, the truce begins at sunrise on the first of March, and is to continue a hundred days of twenty-four hours each. But, as the sun does not rise at the same hour throughout the whole year, the parties, in order to avoid an overstrained nicety, and a degree of chicanery unbecoming that candour which should prevail in conventions of this kind, ought certainly to understand that the truce expires, as it began, at the rising of the sun. The term of a day is meant from one sun to the other, without quibbling or disputing about the difference of a few minutes in the time of his rising. He who, having made a truce for a hundred days, beginning on the twenty-first of June, when the sun rises about four o'clock, should, on the day the truce is to end, take up arms at the same hour, and surprise his enemy before sunrise, would certainly be considered as guilty of a mean and perfidious chicanery.
If no term has been specified for the commencement of the truce, the contracting parties, being bound by it immediately on its conclusion (§ 239), ought to have it published without delay, in order that it may be punctually observed: for, it becomes binding on the subjects only from the time when it is duly published with respect to them (Ibid.); and it begins to take effect only from the moment of the first publication, unless otherwise settled by the terms of the agreement.
The general effect of a truce is that every act of hostility shall absolutely cease. And, in order to obviate all dispute respecting the acts which may be termed hostile, the general rule is, that, during the truce, each party may, within his own territories, and in the places where he is master, do whatever he would have a right to do in time of profound peace. Thus, a truce does not deprive a sovereign of the liberty of levying soldiers, assembling an army in his own dominions, marching troops within the country, and even calling in auxiliaries, or repairing the fortifications of a town which is not actually besieged. As he has a right to do all these things in time of peace, the truce does not tie up his hands. Can it be supposed that, by such a compact, he meant to debar himself from executing things which the continuation of hostilities could not prevent him from doing?
But to take advantage of the cessation of arms in order to execute without danger certain things which are prejudicial to the enemy, and which could not have been safety undertaken during the continuance of hostilities, is circumventing and deceiving the enemy with whom the compact has been made; it is a breach of the truce. By this second general rule we may solve several particular cases.
The truce concluded between the governor of a town and the general besieging it, deprives both of the liberty of continuing their works. With regard to the latter, this is manifest, — his works being acts of hostility. But neither can the governor, on his part, avail himself of the armistice, for the purpose of repairing the breaches or erecting new fortifications. The artillery of the besiegers does not allow him to carry on such works with impunity during the continuance of hostilities: it would therefore be detrimental to them that he should employ the truce in this manner: and they are under no obligation of submitting to be so far imposed upon: they will with good reason consider such an attempt as an infraction of the truce. But the suspension of arms does not hinder the governor from continuing within his town such works as were not liable to be impeded by the attacks or fire of the enemy. At the last siege of Tournay, after the surrender of the town, an armistice was agreed on; during the continuance of which, the governor permitted the French to make all the necessary preparations for attacking the citadel, to carry on their works, and erect their batteries, — because the governor, on his part, was in the mean time busily employed within, in clearing away the rubbish with which the blowing up of a magazine had filled the citadel, and was erecting batteries on the ramparts. But all this he might have performed with little or no danger, even if the operations of the siege had commenced; whereas the French could not have carried on their works with such expedition, or made their approaches and erected their batteries without losing a great number of men. There was therefore no equality in the case; and, on that footing, the truce was entirety in favour of the besiegers: and, in consequence of it, the capture of the citadel took place sooner, probably by a fortnight, than it would otherwise have happened.
If the truce be concluded either for the purpose of settling the terms of the capitulation or of waiting for the orders of the respective sovereigns, the besieged governor cannot make use of it as a convenient opportunity to introduce succours or ammunition into the town: for, this would be taking an undue advantage of the armistice for the purpose of deceiving the enemy — a conduct which is inconsistent with candour and honesty. The spirit of such a compact evidently imports that alt things shall remain as they were at the moment of its conclusion.
But this is not to be extended to a suspension of arms agreed on for some particular circumstance, as, for instance, burying the dead. In this case, the truce is to be interpreted, with a view to its immediate object. Accordingly, the firing ceases, either in all quarters, or only in a single point of attack, pursuant to agreement, that each party may freely carry off their dead: and during this intermission of the cannonade, it is not allowable to carry on any works which the firing would have impeded. This would be taking an undue advantage of the armistice, and consequently a violation of it. But it is perfectly justifiable in the governor, during such a cessation of hostilities, silently to introduce a reinforcement in some quarter remote from the point of attack. If the besieger, lulled by such an armistice, abates in his vigilance, he must abide the consequences. The armistice of itself does not facilitate the entrance of that reinforcement.
Likewise, if an army in a bad position proposes and concludes an armistice for the purpose of burying the dead after a battle, it cannot pretend, during the suspension of arms, to extricate itself from its disadvantageous situation, and to march off unmolested, in sight of the enemy. This would be availing itself of the compact in order to effect a purpose which it could not otherwise have accomplished. This would be laying a snare; and conventions must not be converted into snares. The enemy, therefore, may justly obstruct the motions of that army the moment it attempts to quit its station: but, if it silently files off in the rear, and thus reaches a safer position, it will not be guilty of a breach of faith; since nothing more is implied by a suspension of arms for the burial of the dead, than that neither party shall attack the other whilst this office of humanity is performing. The enemy, therefore, can only blame his own remissness: — he ought to have stipulated, that, during the cessation of hostilities, neither party should quit their post: or it was his business vigilantly to watch the motions of the hostile army and on perceiving their design, he was at liberty to oppose it. It is a very justifiable stratagem to propose a cessation of arms for a particular object, with a view of lulling the enemy's vigilance, and covering a design of retreating.
But, if the truce be not made for any particular object alone, we cannot honourably avail ourselves of it in order to gain an advantage, as, for instance, to secure an important post, or to advance into the enemy's country, The latter step would indeed be a violation of the truce; for, every advance into the enemy's country is an act of hostility.
Now, as a truce suspends hostilities without putting an end to the war, every thing must, during the continuance of the truce, be suffered to remain in its existing state, in all places of which the possession is contested: nor is it lawful, in such places, to attempt any thing to the prejudice of the enemy. This is a third general rule.
When the enemy withdraws his troops from a place, and absolutely quits it, his conduct sufficiently shows that he does not intend to occupy it any longer: and in this case we may lawfully take possession of it during the truce. But if, by any indication, it appears that a post, an open town, or a village, is not relinquished by the enemy, and that, though he neglects to keep it guarded, he still maintains his rights and claims to it, the truce forbids us to seize upon it. To take away from the enemy what he is disposed to retain, is an act of hostility.
It is also an undoubted act of hostility to receive towns or provinces inclined to withdraw from the sovereignty of the enemy, and give themselves up to us. We therefore cannot receive them during the continuance of the truce, which wholly suspends all hostile proceedings.
Far more unlawful it is, during that period, to instigate the subjects of the enemy to revolt, or to tamper with the fidelity of his governors and garrisons. These are not only hostile proceedings, but odious acts of hostility (§ 180). As to deserters and fugitives, they may be received during the truce, since they are received even in time of peace, when there is no treaty to the contrary. And, even if such a treaty did exist, its effect is annulled, or at least suspended, by the war which has since taken place.
To seize persons or things belonging to the enemy, when he has not, by any particular fault on his side, afforded us grounds for such seizure, is an act of hostility, and consequently not allowable during a truce.
Since the right of postliminium is founded only on the state of war (Chap. XIV. of this Book), it cannot take effect during the truce, which suspends all the acts of war, and leaves every thing in its existing state (§ 251). Even prisoners cannot during that season withdraw from the power of the enemy, in order to recover their former condition: for the enemy has a right to detain them while the war continues; and it is only on its conclusion that his right over their liberty expires(§ 148).
During the truce, especially if made for a long period, it is naturally allowable for enemies to pass and repass to and from each other's country, in the same manner as it is allowed in time of peace, since all hostilities are now suspended. But each of the sovereigns is at liberty, as he would be in time of peace, to adopt every precaution which may be necessary to prevent this intercourse from becoming prejudicial to him. He has just grounds of suspicion against people with whom he is soon to recommence hostilities. He may even declare, at the time of making the truce, that he will admit none of the enemy into any place under his jurisdiction.
Those who, having entered the enemy's territories during the truce, are detained there by sickness or any other unsurmountable obstacle, and thus happen to remain in the country after the expiration of the armistice, may in strict justice be kept prisoners: it is an accident which they might have foreseen, and to which they have of their own accord exposed themselves; but humanity and generosity commonly require that they should be allowed a sufficient term for their departure.
If the articles of truce contain any conditions either more extensive or more narrowly restrictive than what we have here laid down, the transaction becomes a particular convention. It is obligatory on the contracting parties, who are bound to observe what they have promised in due form: and the obligations thence resulting constitute a conventional right, the detail of which is foreign to the plan of this work.
As the truce only suspends the effects of war (§ 233), the moment it expires, hostilities may be renewed without any fresh declaration of war; for every one previously knows that from that instant the war will resume its course; and the reasons for the necessity of a declaration are not applicable to this case (§ 51).
But a truce of many years very much resembles a peace, and only differs from it in leaving the subject of the war still undecided. Now, as a considerable lapse of time may have effected a material alteration in the circumstances and dispositions of both the parties, — the love of peace, so becoming in sovereigns, the care they should take to spare their subjects' blood, and even that of her enemies, — these dispositions, I say, seem to require that princes should not take up arms again at the expiration of a truce in which all military preparatives had been totally laid aside and forgotten, without making some declaration which may invite the enemy to prevent the effusion of blood. The Romans have given us an example of this commendable moderation, They had only made a truce with the city of Veii; and the enemy even renewed hostilities before the stipulated time was elapsed. Nevertheless, at the expiration of the term, the college of the feciales gave it as their opinion that the Romans should send to make a formal demand of satisfaction, previous to their taking up arms again.4
The capitulations on the surrender of towns are among the principal conventions made between enemies during the course of war. They are usually settled between the general of the besieging army and the governor of the besieged town, both acting in virtue of the authority annexed to their respective posts or commissions.
We have elsewhere (Book II. Chap. XIV.) laid down the principles of that authority which is vested in the subordinate powers, together with general rules to aid in forming a decision respecting it. All this has recently been recapitulated in a few words, and particularly applied to generals and other military commanders in chief (§ 237). Since the general of an army, and the governor of a town, must naturally be invested with all the powers necessary for the exercise of their respective functions, we have a right to presume that they possess those powers: and that of concluding a capitulation is certainly one of the number, especially when they cannot wait for the sovereign's order. A treaty made by them on that subject is therefore valid, and binds the sovereigns in whose name and by whose authority the respective commanders have acted.
But let it be observed, that, if those officers do not mean to exceed their powers, they should scrupulously confine themselves within the limits of their functions, and forbear to meddle with things which have not been committed to their charge. In the attack and the defence, in the capture or the surrender of a town, the possession alone is the point in question, and not the property and right: the fate of the garrison is also involved in the transaction. Accordingly, the commanders may come to an agreement respecting the manner in which the capitulating town shall be possessed: the besieging general may promise that the inhabitants shall be spared, and permitted to enjoy their religion, franchises, and privileges: and, as to the garrison, he may allow them to march out with their arms and baggage, with all the honours of war, — to be escorted and conducted to a place of safety, &c. The governor of the town may deliver it up at discretion, if reduced to that extremity by the situation of affairs: he may surrender himself and his garrison prisoners of war, or engage, that, for a stipulated time, or even to the end of the war, they shall not carry arms against the same enemy, or against his allies: and the governor's promise is valid and obligatory on all under his command, who are bound to obey him while he keeps within the limits of his functions (§ 23).
But, should the besieging general take on him to promise that his sovereign shall never annex the conquered town to his own dominions, or shall, after a certain time, be obliged to restore if, he would exceed the bounds of his authority, in entering into a contract respecting matters which are not intrusted to his management. And the like may be said of a governor who in the capitulation should proceed to such lengths as for ever to alienate the town which he commands, and to deprive his sovereign of the right to retake it, — or who should
promise that his garrison shall never carry arms, not even in another war. His functions do not give him so extensive a power. If, therefore, in the conferences for a capitulation, either of the hostile commanders should insist on conditions which the other does not flunk himself empowered to grant, they have still one expedient left, which is, to agree to an armistice, during which every thing shall continue in its present state, until they have received orders from higher authority.
At the beginning of this chapter we have given the reasons why we thought it unnecessary to prove in this place that all these conventions made during the course of the war, are to be inviolably adhered to. We shall therefore only observe, with respect to capitulations in particular, that, as it is unjust and scandalous to violate them, so the consequences of such an act of perfidy often prove detrimental to the party who has been guilty of it. What confidence can thenceforward be placed in him? The towns which he attacks will endure the most dreadful extremities, rather than place any dependence on his word. He strengthens his enemies by compelling them to make a desperate defence; and every siege that he is obliged to undertake will become terrible. On the contrary, fidelity attracts confidence and affection; it facilitates enterprises, removes obstacles, and paves the way to glorious successes. Of this, history furnishes us a fine example in the conduct of George Basle, general of the imperialists in 1602, against Battory and the Turks, The insurgents of Battory's party having gained possession of Bistrith, otherwise called Nissa, Baste recovered the town by a capitulation, which in his absence was violated by some German soldiers, but, being informed of the transaction on his return, he immediately hanged up all the soldiers concerned, and out of his own purse paid the inhabitants all the damages they had sustained. This action had so powerful an influence on the minds of the rebels, that they all submitted to the emperor, without demanding any other surely than the word of General Baste.5
Individuals, whether belonging to the army or not, who happen singly to fall in with the enemy, are, by the urgent necessity of the circumstance, left to their own discretion, and may, so far as concerns their own persons, do every thing which a commander might do with respect to himself and the troops under his command. If, therefore, in consequence of the situation in which they are involved, they make any promise, such promise (provided it do not extend to matters which can never lie within the sphere of a private individual) is valid and obligatory, as being made with competent powers. For, when a subject can neither receive his sovereign's orders nor enjoy his protection, he assumes his natural rights, and is to provide for his own safety by any just and honourable means in his power.(184) Hence, if that individual has promised a sum for his ransom, the sovereign, so far from having a power to discharge him from his promise, should oblige him to fulfil it. The good of the state requires that faith should be kept on such occasions, and that subjects should have this mode of saving their lives or recovering their liberty.(185)
Thus, a prisoner who is released on his parole, is bound to observe it with scrupulous punctuality; nor has the sovereign a right to oppose such observance of his engagement: for, had not the prisoner thus given his parole, he would not have been released.
Thus, also, the country people, the inhabitants of villages or defenceless towns, are bound to pay the contributions which they have promised in order to save themselves from pillage.(186)
Nay, more, a subject would even have a right to renounce his country, if the enemy, being master of his person, refused to spare his life on any other condition: for, when once the society to which he belongs is unable to protect and defend him, he resumes his natural rights. And besides, should he obstinately refuse compliance, what advantage would the state derive from his death? Undoubtedly, while any hope remains, while we have yet any means of serving our country, it is our duty to expose ourselves and to brave every danger for her sake. I here suppose that we have no alternative but that of renouncing our country, or perishing without any advantage to her. If by our death we can serve her, it is noble to imitate the heroic generosity of the Decii. But an engagement to serve against our country, were it the only means of saving our life, is dishonourable, and a man of spirit would submit to a thousand deaths, rather than make so disgraceful a promise.
If a soldier, meeting an enemy in a by-place, makes him prisoner, but promises him his life or liberty on condition of his paying a certain ransom, this agreement is to be respected by the superiors: for, it does not appear that the soldier, left entirely to himself on that occasion, has in any particular exceeded his powers. He might, on the other hand, have thought it imprudent to attack that enemy, and, under that idea, have suffered him to escape. Under the direction of his superiors, he is bound to obey: when alone, he is left to his own discretion. Procopius relates the adventure of two soldiers, the one a Goth and the other a Roman, who, being fallen together into a pit, mutually promised each other that their lives should be spared: and this agreement was approved by the Goths.6
1. Lib. iii. cap. xxi. § i.
2. — Belli commercia Turnus
Sustulit ista prior. — Æn. x. 532.
3. Ann. lib. xiv. cap. xxxiii.
4. Tit. Liv. lib. iv. cap. 30.
5. Sully's Memoirs, by M. de l'Ecluse, vol. iv. p. 179.
(184) In general, all contracts in favour of alien enemies are, in Great Britain, void, both at law and in equity; (Williamson v. Patterson, 7 Taunton's Rep. 439, 1 J.B. Moore, 333 S.C.; 2 Ves. & B. 332; ante, 321, n (a),); unless the enemy come into this country sub salvo conductu, or live here by the king's license; (Cowp. 163; 6 Term Rep. 23; 2 Ves. & Beam 332.) And a bill drawn abroad by an alien enemy on a British subject here, and endorsed during war to a British subject voluntarily resident in the hostile country, cannot be enforced by the latter after peace has been restored, because it was illegal in its concoction; Williamson v. Patterson, ubi supra; 3 Bos. & Pul. 113; 3 Maule & Sel. 533.} But, upon the principle above laid down by Vattel, it was decided that where two British subjects were declared prisoners in France, and one of them drew a bill in favour of the other on a third British subject, resident in England, and such payee endorsed the same in France to an alien enemy — it was held that the transaction was legal, and that the alien's right of action was only suspended during the war; and that, on the return of peace, he might recover the amount from the acceptor; for, otherwise, such persons would sustain great privations during their detention: and, for the same reason, it is no objection to an action on such bill, that it is brought as to part in trust for an alien enemy. Antoine v. Moorshead, 6 Taunt. 237, 447, 1 Marsh. Rep. 558, S.C. Danbug v. Moorshead, 6 Taunt, 332. — C.
(185) See the same principle and reasoning, ante § 174, p. 371-2. This doctrine, as to ransom, and ransom-bills, is recognised as part of the law of nations, in 4 Bla. Com. 67; 1 Chitty's Com L., 32, 4428. But the ransoming of any ships, or merchandise on board the same, and taken by an enemy of Great Britain, is absolutely prohibited by the English statutes, (22 Geo. 3, c. 25; 43 Geo. c, c. 150; 45 Geo. 3, c. 72;) except in cases of extreme necessity, continuing to be allowed by the Court of Admiralty; and all contracts for ransom, contrary to those statutes, are declared void, and subjected to a penalty of £500. See Marshall on Insurances, 431. These ransom acts are to be considered as remedial laws, and must be construed liberally to met the mischief. Havelock v. Rockwood, 6 Term. Rep. 277: Anthon v. Fisher, 2 Dougl. 649, n.; Woodward v. Larkins, 3 Esp. R. 266. And see decisions, Corme v. Blackburne, 2 Dougl. 641; Webb v. Brooks, 3 Taunt. 6; Yeats v. Hall, and Kelly v. Grant, 1 Term. Rep. 73,76. And where the master of a British ship, captured by an American, induced the latter to release the vessel, on the former drawing a blll on England for £1000, by way of ransom, and the payment of which he countermanded in time, he was even allowed to recover from his owners compensation in the nature of salvage, for his services — morally speaking, constituting a perfidious breach of faith, Ship London, 2 Dodson's Rep. 74. — C.
(186) Same point, ante, 403, in note — C.
6. Hist. Goth. lib. ii. cap. I. quoted by Puffendorf, book viii. chap. vii. 14.
SAFE-CONDUCTS and passports are a kind of privilege insuring safety to persons in passing and repassing, or to certain things during their conveyance from one place to another. From the usage and genius of the (French) language, it appears that the term "passport" is used, on ordinary occasions, when speaking of persons who lie under no particular exception as to passing and repassing in safety, and to whom it is only granted for greater security, and in order to prevent all debate, or to exempt them from some general prohibition. A safe-conduct is given to those who otherwise could not safely pass through the places where he who grants it is master, — as, for instance, to a person charged with some misdemeanour, or to an enemy. It is of the latter that we are here to treat.
All safe-conducts, like every other act of supreme command, emanate from the sovereign authority: but the prince may delegate to his officers the power of granting safe-conducts; and they are invested with that power either by an express commission, or by a natural consequence of the nature of their functions. A general of an army, from the very nature of his post, can grant safe-conducts: and, as they are derived, through mediately, from the sovereign authority, the other generals or officers of the same prince are bound to respect them.
The person named in the safe-conduct cannot transfer his privilege to another: for he does not know whether it be a matter of indifference to the grantor of the safe-conduct that another person should use it in his stead: and, so far from presuming that to be the case, he is even bound to presume the contrary, on account of the abuses which might thence result; and he cannot assume to himself any further privilege than was intended for him. If the safe-conduct is granted, not for persons, but for certain effects, those effects may be removed by others besides the owner. The choice of those who remove them is indifferent, provided there do not lie against them any personal exception sufficient to render them objects of just suspicion in the eye of him who grants the safe-conduct, or to exclude them from the privilege of entering his territories.
He who promises security by a safe-conduct, promises to afford it wherever he has the command, — not only in his own territories, but likewise in every place where any of his troops may happen to be: and he is bound, not only to forbear violating that security either by himself or his people, but also to protect and defend the person to whom he has promised it, to punish any of his subjects who have offered him violence, and oblige them to make good the damage.1
As the right arising from a safe-conduct proceeds entirely from the will of him who grants it, that will is the standard by which the extent of the right is to be measured; and the will is discoverable in the object for which the safe-conduct was granted. Consequently, a person who has barely obtained permission to go away, does not thence derive a right to come back again; and a safe-conduct, granted for the simple passage through a country, does not entitle the bearer to repass through it on his return. When the safe-conduct is granted for a particular business, it must continue in force until that business is concluded, and the person has had time to depart: if it is specified to be granted for a journey, it will also serve for the person's return, since both passage and return are included in a journey. As this privilege consists in the liberty of going and coming in safety, it differs from a permission to settle in any particular place, and consequently cannot give a right to stop anywhere for a length of time, unless on some special business, in consideration of which the safe-conduct was asked and granted.
A safe-conduct given to a traveller, naturally includes his baggage, or his clothes, and other things necessary for his journey, with even one or two domestics, or more, according to the rank of the person. But, in all these respects, as well as in the others which we have just noticed above, the safest mode, especially when we have to do with enemies or other suspected persons, is, to specify and distinctly enumerate the particulars, in order to obviate every difficulty. Accordingly, such is the practice which at present prevails; and, in granting safe-conducts, it is the custom expressly to include the baggage and domestics.
Though a permission to settle anywhere, granted to the father of a family, naturally includes his wife and children, it is otherwise with a safe-conduct; because it seldom happens that a man settles in a place without having his family with him; whereas, on a journey, it is more usual to travel without them.
A safe-conduct, granted to a person for himself and his retinue, cannot give him a right of bringing with him persons justly suspected by the state, or who have been banished, or have fled from the country on account of any crime; nor can it serve as a protection to such men: for, the sovereign who grants a safe-conduct in those general terms, does not suppose that it will be presumptuously abused for the purpose of bringing persons into his territories who have been guilty of crimes, or have particularly offended him.
A safe-conduct, given for a stated term, expires at the end of the term specified therein; and the bearer, if he does not retire before that time, may be arrested, and even punished, according to circumstances, especially if he has given room for suspicion by an affected delay.
But, if forcibly detained, as by sickness so as to be unable to depart in time, a proper respite should be allowed him; for a promise of security has been made to him: and, though it was made only for a limited time, it is not by any fault of his own that he has been prevented from departing within the term. The case is different from that of an enemy coming into our country during a truce: to the latter we have made no particular promise; he, at his own peril, takes advantage of a general liberty allowed by the suspension of hostilities. All we have promised to the enemy is to forbear hostilities for a certain time; and, at the expiration of that term, it is a matter of importance to us that we be at liberty to let the war freely take its course, without being impeded by a variety of excuses and pretexts.
The safe-conduct does not expire at the decease or deposition of him who granted it; for it was given in virtue of the sovereign authority, which never dies, and whose efficacy exists independent of the person intrusted with the exercise of it. It is with this act as with other ordinances of the public power; their validity or duration does not depend on the life of him who enacted them, unless, by their very nature, or by express declaration, they are personally confined to him.
The successor, nevertheless, may revoke a safe-conduct, if he has good reasons for the revocation. Even he who has granted it may, in like case, revoke it: nor is he always obliged to make known his reasons. Every privilege, when it becomes detrimental to the state, may be revoked, — a gratuitous privilege, purely and simply, — a purchased privilege, on giving an indemnification to the parties concerned. Suppose a prince or his general is preparing for a secret expedition; — must he suffer any person, under cover of a safe-conduct, antecedently obtained, to come and pry into his preparatives, and give the enemy intelligence of them? But a safe-conduct is not to be converted into a snare; if it be revoked, the bearer must be allowed time and liberty to depart in safety. If he, like any other traveller, be detained for some time, in order to prevent his carrying intelligence to the enemy, no ill-treatment is to be offered him; nor is he to be kept longer than while the reasons for his detainder subsist.
If a safe-conduct contains this clause — "For such time as we shall think fit," it gives only a precarious right, and is revocable every moment: but, until it has been expressly revoked, it remains valid. It expires on the death of him who gave it, who, from that moment, ceases to will the continuation of the privilege. But it must always be understood that, when a safe-conduct expires in this manner, the bearer is to be allowed a proper time for his safe departure.
After having discussed the right of making prisoners of war, — the obligation of the captor to release them at the peace, by exchange or ransom, — and that of their sovereign to obtain their liberty, — it remains to consider the nature of those conventions whose object is the deliverance of these unfortunate sufferers. If the belligerent sovereigns have agreed on a cartel for the exchange or ransom of prisoners, they are bound to observe it with equal fidelity as any other convention. But if (as was frequently the practice in former times) the state leaves to each prisoner, at least during the continuance of the war, the care of redeeming himself — such private conventions present a number of questions, of which we shall only touch on the principal ones.
He who has acquired a lawful right to demand a ransom from his prisoner, may transfer his right to a third person. This was practised in the last ages. It was frequent for military men to resign their prisoners, and transfer all the lights they had over them into other hands. But as the person who takes a prisoner is bound to treat him with justice and humanity (§ 150), he must not, if he wishes that his conduct should be free from censure, transfer his right, in an unlimited manner, to one who might make an improper use of it: when he has agreed with his prisoner concerning the price of his ransom, he may transfer to whom he pleases the right to demand the stipulated sum.
When once the agreement is made with a prisoner for the price of his ransom, it becomes a perfect contract, and cannot be rescinded under pretence that the prisoner is discovered to be richer than was imagined: for it is by no means necessary that the rate should be proportioned to the wealth of the prisoner, since that is not the scale by which we measure the right to detain a prisoner of war (§§ 148, 153). But it is natural to proportion the price of the ransom to the prisoner's rank in the hostile army, because the liberty of an officer of distinction is of greater consequence than that of a private soldier or an inferior officer, if the prisoner has not only concealed, but disguised his rank, it is a fraud on his part, which gives the captor a right to annul the compact.
If a prisoner, having agreed on the price of his ransom, dies before payment, it is asked whether the stipulated sum be due, and whether the heirs are bound to pay it? They undoubtedly are, if the prisoner died on the possession of his liberty: for, from the moment of his release, in consideration of which he had promised a sum, that sum becomes due, and does not at all belong to his heirs. But if he had not yet obtained his liberty, the price which was to have been paid for it is not a debt on him or his heirs, unless he had made his agreement in a different manner; and he is not reputed to have received his liberty until the moment when he is perfectly free to depart at pleasure, — when neither the person who held him prisoner, nor that person's sovereign, opposes his release and departure.
If he has only been permitted to lake a journey, for the purpose of prevailing on his friends or his sovereign to furnish him with the means of ransoming himself, and dies before he is possessed of his full liberty, before he is finally discharged from his parole, nothing is due for his ransom.
If, after having agreed on the price, he is detained in prison till the time of payment, and there dies in the interim, his heirs are not bound to pay the ransom — such an agreement, being on the part of the person who held him prisoner, no more than a promise of giving him his liberty on the actual payment of a certain sum. A promise of buying and selling does not bind the supposed purchaser to pay the price of the article in question, if it happens to perish before the completion of the purchase. But if the contract of sale be perfect, the purchaser must pay the price of the thing sold, though it should happen to perish before delivery, provided there was no fault or delay on the part of the vendor. For this reason, if the prisoner has absolutely concluded the agreement for his ransom, acknowledging himself, from that moment, debtor for the stipulated sum, — and is, nevertheless, still detained, no longer indeed as a prisoner, but a surety for the payment, — the price of the ransom is due, notwithstanding the circumstance of his dying in the interim.
If the agreement says that the ransom shall be paid on a certain day, and the prisoner happens to die before that day, the heirs are bound to pay the sum agreed on: for the ransom was due; and the appointed day was assigned merely as the term of payment.
From a rigid application of the same principles, it follows that a prisoner, who has been released on condition of procuring the release of another, should return to prison, in case the latter happens to die before he has been able to procure him his liberty. But certainly such an unfortunate case is entitled to lenity; and equity seems to require that this prisoner should be allowed to continue in the enjoyment of that liberty which has been granted to him, provided he pays a fair equivalent for it, since he is now unable to purchase it precisely at the price agreed on.
If a prisoner, who has been fully set at liberty, after having promised but not paid his ransom, happens to be taken a second time, it is evident that, without being exempted from the payment of his former ransom, he will have to pay a second, if he wishes to recover his liberty.
On the other hand, though the prisoner has agreed for the price of his ransom, if, before the execution of the compact, — before he is set at liberty in virtue of it, — he be retaken and delivered by his own party, he owes nothing. I here evidently suppose that the contract for his ransom was not completed, and that the prisoner had not acknowledged himself debtor for the sum agreed on. The person who held him prisoner had, as it were, only made him a promise of selling, and he had promised to purchase; but the purchase and sale had not actually passed into effect; the property was not actually transferred.
The property of a prisoner's effects is not vested in the captor, except so far as he seizes on those effects at the time of his capture. Of this there is no doubt, in these modern times, when prisoners of war are not reduced to slavery. And, even by the law of nature, the property of a slave's goods does not, without some other reason, pass to the master of the slave. There is nothing in the nature of slavery which can of itself produce that effect. Though a man obtains certain rights over the liberty of another, does it thence follow that he shall have a right over his property also? When, therefore, the enemy has not plundered his prisoner, or when the latter has found means to conceal something from the captor's search, whatever he has thus saved still continues to be his own property, and he may employ it towards the payment of his ransom. At present, even the plundering of prisoners is not always practised: the greedy soldier sometimes proceeds to such lengths: but an officer would think it an indelible slain on his character, to have deprived them of the smallest article. A party of private French troopers, who had captured a British general at the battle of Rocoux, claimed no right to any thing belonging to their prisoner, except his arms alone.
The death of the prisoner extinguishes the captor's right. Wherefore, if any person is given as a hostage in order to procure a prisoner's enlargement, he ought to be released the moment the prisoner dies; and, on the other hand, if the hostage dies, his death does not reinstate the prisoner in the possession of his liberty. The reverse of this is true, if the one, instead of being simply a hostage for the other, had been substituted in his stead.
(187) As to these, and Mediterranean passes and licenses in general, see 1 Chitty's Commercial Law, 492 — C.
1. At the famous interview at Peronne, Charles duke of Burgundy, exasperated to find that Louis XI. had engaged the people of Liege to take up arms against him, paid no respect to the safe conduct which he had granted to that prince. If Louis had plotted and negotiated their defection while he was at Peronne, Charles would have been justifiable in disregarding a safe-conduct of which an improper use had been made. But the French monarch had dispatched agents to Ghent for that purpose, before there was any question of the meeting at Peronne; and Charles, in the transports of blind resentment, excited by the disagreeable and unexpected intelligence, committed a flagrant breach of the law of nations.
IT is a question very much debated, whether a sovereign is bound to observe the common laws of war towards rebellious subjects who have openly taken up arms against him? A flatterer, or a prince of a cruel and arbitrary disposition, will immediately pronounce that the laws of war were not made for rebels, for whom no punishment can be loo severe. Let us proceed more soberly, and reason from the incontestable principles above laid down. In order clearly to discover what conduct the sovereign ought to pursue towards revolted subjects, we must, in the first place, recollect that all the sovereign's rights are derived from those of the state or of civil society, from the trust reposed in him, from the obligation he lies under of watching over the welfare of the nation, of procuring her greatest happiness, of maintaining order, justice, and peace within her boundaries (Book I. Chap. IV). Secondly, we must distinguish the nature and degree of the different disorders which may disturb the state, and oblige the sovereign to take up arms, or substitute forcible measures instead of the milder influence of authority.
The name of rebels is given to all subjects who unjustly take up arms against the ruler of the society, whether their view be to deprive him of the supreme authority, or to resist his commands in some particular instance, and to impose conditions on him.
A popular commotion is a concourse of people who assemble in a tumultuous manner, and refuse to listen to the voice of their superiors, whether the design of the assembled multitude be levelled against the superiors themselves, or only against some private individuals. Violent commotions of this kind take place when the people think themselves aggrieved: and there is no order of men who so frequently give rise to them as the tax-gatherers. If the rage of the malcontents be particularly levelled at the magistrates, or others vested with the public authority, and they proceed to a formal disobedience or acts of open violence, this is called a sedition. When the evil spreads, — when it infects the majority of the inhabitants of a city or province, and gains such strength that even the sovereign himself is no longer obeyed, — it is more usual more particularly to distinguish such a disorder by the name of insurrection.
All these violences disturb the public order, and are state crimes, even when arising from just causes of complaint. For violent measures are forbidden in civil society: the injured individuals should apply to the magistrate for redress, and if they do not obtain justice from that quarter, they may lay their complaints at the foot of the throne. Every citizen should even patiently endure evils, which are not insupportable, rather than disturb the public peace. A denial of justice on the part of the sovereign, or affected delays can alone excuse the furious transports of a people whose patience has been exhausted, — and even justify them, if the evils be intolerable, and the oppression great and manifest. But what conduct shall the sovereign observe towards the insurgents? I answer, in general, — such conduct as shall at the same time be the most consonant to justice, and the most salutary to the state. Although it be his duty to repress those who unnecessarily disturb the public peace, he is bound to show clemency towards unfortunate persons, to whom just causes of complaint have been given, and whose sole crime consists in the attempt to do themselves justice: they have been deficient in patience rather than fidelity. Subjects who rise against their prince without cause deserve severe punishment: yet, even in this case, on account of the number of the delinquents, clemency becomes a duty in the sovereign. Shall he depopulate a city, or desolate a province, in order to punish her rebellion? Any punishment, however just in itself, which embraces loo great a number of persons, becomes an act of downright cruelty. Had the insurrection of the Netherlands against Spain been totally unwarrantable, universal detestation would still attend the memory of the duke of Alva, who made it his boast that he had caused twenty thousand heads to be struck off by the hands of the common executioner. Let not his sanguinary imitators expect to justify their enormities by the plea of necessity. What prince ever suffered more outrageous indignities from his subjects than Henry the Great, of France? Yet, his victories were ever accompanied by a uniform clemency; and that excellent prince at length obtained the success he deserved: he gained a nation of faithful subjects; whereas the duke of Alva caused his master to lose the United Provinces. Crimes, in which a number of persons are involved, are to be punished by penalties which shall equally fall on all the parties concerned: the sovereign may deprive a town of her privileges, at least, till she has fully acknowledged her fault; as to corporal punishment, let that be reserved for the authors of the disturbances, — for those incendiaries who incite the people to revolt. But tyrants alone will treat, as seditious, those brave and resolute citizens who exhort the people to preserve themselves from oppression, and to vindicate their rights and privileges: a good prince will commend such virtuous patriots, provided their zeal be tempered with moderation and prudence. If he has justice and his duty at heart, — if he aspires to that immortal and unsullied glory of being the father of his people, let him mistrust the selfish suggestions of that minister who represents to him as rebels all those citizens who do not stretch out their necks to the yoke of slavery, — who refuse tamely to crouch under the rod of arbitrary power.
In many cases, the safest, and at the same time the most just method of appeasing seditions, is to give the people satisfaction. And if there existed no reasons to justify the insurrection (a circumstance which, perhaps, never happens), even in such case, it becomes necessary, as we have above observed, to grant an amnesty where the offenders are numerous. When the amnesty is once published and accepted, all the past must be buried in oblivion; nor must any one be called to account for what has been done during the disturbances: and, in general, the sovereign, whose word ought ever to be sacred, is bound to the faithful observance of every promise he has made, even to rebels, — I mean, to such of his subjects as have revolted without reason or necessity. If his promises are not inviolable, the rebels will have no security in treating with him: when they have once drawn the sword, they must throw away the scabbard, as one of the ancients expresses it; and the prince, destitute of the more gentle and salutary means of appeasing the revolt, will have no other remaining expedient than that of utterly exterminating the insurgents. These will become formidable through despair; compassion will bestow succours on them; their party will increase, and the state will be in danger. What would have become of France, if the leaguers had thought it unsafe to rely on the promises of Henry the Great? The same reasons which should render the faith of promises inviolable and sacred between individual and individual, between sovereign and sovereign, between enemy and enemy (Book II. §§ 163, 218, &c. and Book III. § 174), subsist in all their force between the sovereign and his insurgent or rebellious subjects. However, if they have extorted from him odious conditions, which are inimical to the happiness of the nation, or the welfare of the state, — as he has no right to do or grant any thing contrary to that grand rule of his conduct, which is at the same time the measure of his power, he may justly revoke any pernicious concessions which he has been obliged to make, provided the revocation be sanctioned by the consent of the nation, whose opinion he must take on the subject, in the manner and forms pointed out to him by the constitution of the state. But this remedy is to be used with great reserve, and only in matters of high importance, lest the faith of promises should be weakened and brought into disrepute.1
When a party is formed in a state, who no longer obey the sovereign, and are possessed of sufficient strength to oppose him, — or when, in a republic, the nation is divided into two opposite factions, and both sides take up arms, — this is called a civil war. Some writers confine this term to a just insurrection of the subjects against their sovereign, to distinguish that lawful resistance from rebellion, which is an open and unjust resistance. But what appellation will they give to a war which arises in a republic torn by two factions, — or in a monarchy, between two competitors for the crown? Custom appropriates the term of "civil war" to every war between the members of one and the same political society. If it be between part of the citizens on the one side, and the sovereign, with those who continue in obedience to him, on the other, — provided the malcontents have any reason for taking up arms, nothing further is required to entitle such disturbance to the name of civil war, and not that of rebellion. this latter term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. the sovereign, indeed, never fails to bestow the appellation of rebels on all such of his subjects as openly resist him: but, when the latter have acquired sufficient strength to give him effectual opposition, and to oblige him to carry on the war against them according to the established rules, he must necessarily submit to the use of the term "civil war."
It is foreign to our purpose in this place to weigh the reasons which may authorize and justify a civil war: we have elsewhere treated of the cases wherein subjects may resist the sovereign (Book I. Chap IV). Setting, therefore, the justice of the cause wholly out of the question, it only remains for us to consider the maxims which ought to be observed in a civil war, and to examine whether the sovereign in particular is, on such an occasion, bound to conform to the established laws of war.
A civil war breaks the bands of society and government, or, at least, suspends their force and effect: it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies, two distinct societies. Though one of the parties may have been to blame in breaking the unity of the state and resisting the lawful authority, they are not the less divided in fact. Besides, who shall judge them? who shall pronounce on which side the right or the wrong lies? On earth they have no common superior. They stand therefore in precisely the same predicament as two nations, who engage in a contest and, being unable to come to an agreement, have recourse to arms.
This being the case, it is very evident that the common laws of war, — those maxims of humanity, moderation, and honour, which we have already detailed in the course of this work, — ought to be observed by both parties in every civil war. For the same reasons which render the observance of those maxims a matter of obligation between state and state, it becomes equally and even more necessary in the unhappy circumstance of two incensed parties lacerating their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals:2 — if he does not religiously observe the capitulations, and all other conventions made with his enemies, they will no longer rely on his word: — should he burn and ravage, they will follow his example; the war will become cruel, horrible, and every day more destructive to the nation. The duke de Montpensier's infamous and barbarous excesses against the reformed party in France are too well known: the men were delivered up to the executioner, and the women to the brutality of the soldiers. What was the consequence? the Protestants became exasperated; they look vengeance of such inhuman practices; and the war, before sufficiently cruel as a civil and religious war, became more bloody and destructive. Who could without horror read of the savage cruelties committed by the Baron Des Adrets? By turns a Catholic and a Protestant, he distinguished himself by his barbarity on both sides. At length it became necessary to relinquish those pretensions to judicial authority over men who proved themselves capable of supporting their cause by force of arms, and to treat them, not as criminals but as enemies. Even the troops have often refused to serve in a war wherein the prince exposed them to cruel reprisals. Officers who had the highest sense of honour, though ready to shed their blood in the field of battle for his service, have not thought it any part of their duty to run the hazard of an ignominious death. Whenever, therefore, a numerous body of men think they have a right to resist the sovereign, and feel themselves in a condition to appeal to the sword, the war ought to be carried on by the contending parties in the same manner as by two different nations: and they ought to leave open the same means for preventing its being carried to outrageous extremities, and for the restoration of peace.
When the sovereign has subdued the opposite party, and reduced them to submit and sue for peace, he may except from the amnesty the authors of the disturbances, — the heads of the party: he may bring them to a legal trial, and punish them, if they be found guilty. He may act in this manner particularly on occasion of those disturbances in which the interests of the people are not so much the object in view as the private aims of some powerful individuals, and which rather deserve the appellation of revolt than of civil war. Such was the case of the unfortunate duke of Montmorency: — he took up arms against the king, in support of the duke of Orleans; and being defeated and taken prisoner at the battle of Castelnaudari, he lost his life on a scaffold, by the sentence of the parliament of Toulouse. If he was generally pitied by all men of worth and sentiment, it was because they viewed him rather as an opponent to the exorbitant power of an imperious minister, than as a rebel against his sovereign, — and that his heroic virtues seemed to warrant the purity of his intentions.3
When subjects take up arms without ceasing to acknowledge the sovereign, and only for the purpose of obtaining a redress of their grievances, there are two reasons for observing the common laws of war towards them: — First, an apprehension lest the civil war should become more cruel and destructive by the insurgents making retaliation, which, as we have already observed, they will not fail to do, in return for the severities exercised by the sovereign. 2. The danger of committing great injustice by hastily punishing those who are accounted rebels. The flames of discord and civil war are not favourable to the proceedings of pure and sacred justice: more quiet times are to be waited for. It will be wise in the prince to keep his prisoners, till, having restored tranquillity, he is able to bring them to a legal trial.
As to the other effects which the law of nations attributes to public war, see Chap. XII. of this Book, and particularly the acquisition of things taken in war, — subjects who take up arms against their sovereign without ceasing to acknowledge him, cannot lay claim to the benefit of those effects. The booty alone, the movable property carried off by the enemy, is considered as lost to the owners; but this is only on account of the difficulty of recognising it, and the numberless inconveniences which would arise from the attempt to recover it. All this is usually settled in the edict of pacification, or the act of amnesty.
But, when a nation becomes divided into two parties absolutely independent, and no longer acknowledging a common superior, the state is dissolved, and the war between the two parties stands on the same ground, in every respect, as a public war between two different nations. Whether a republic be split into two factions, each maintaining that it alone constitutes the body of the state, — or a kingdom be divided between two competitors for the crown, — the nation is severed into two parties, who will mutually term each other rebels. Thus there exist in the state two separate bodies, who pretend to absolute independence, and between whom there is no judge (§ 293). They decide their quarrel by arms, as two different nations would do. The obligation to observe the common laws of war towards each other is therefore absolute, — indispensably binding on both parties, and the same which the law of nature imposes on all nations in transactions between state and state.
Foreign nations are not to interfere in the internal government of an independent state. (Book II. § 54, &c.) It belongs not to them to judge between the citizens whom discord has roused to arms, nor between the prince and his subjects: both parties are equally foreigners to them, and equally independent of their authority. They may, however, interpose their good offices for the restoration of peace; and this the law of nature prescribes to them. (Book II. Ch. I.) But, if their mediation proves fruitless, such of them as are not bound by any treaty, may, with the view of regulating their own conduct, take the merits of the cause into consideration, and assist the party which they shall judge to have right on its side, in case that party requests their assistance or accepts the offer of it: they are equally at liberty, I say, to do this, as to espouse the quarrel of one nation embarking in a war against another. As to the allies of the state thus distracted by civil war, they will find a rule for their conduct in the nature of their engagements, combined with the existing circumstances. Of this we have treated elsewhere. (See Book n. Chap. XII and particularly §§ 196 and 197.)
1. An instance of this occurs in the transactions which took place after the insurrection at Madrid, in 1766. At the requisition of the Cortes, the king revoked the concessions which he had been obliged to make to the insurgent populace, but he suffered the amnesty to remain in force.
2. The prince of Condé, commander of Louis XIII.'s forces against the reformed party, having hanged sixty-four officers whom he had made prisoners during the civil war, the Protestants resolved upon retaliation; and the duke de Rohan, who commanded them, caused an equal number of Catholic officers to he hanged. See Memoires de Rohan. The duke of Alva made it a practice to condemn to death every prisoner he took from the confederates in the Netherlands, They, on their part, retaliated, and at length compelled him to respect the law of nations and the rules of war in his conduct toward them. Grotius, Ann. lib. ii.
3. See the historians of the reign of Louis XIII.