A RUNNING COMMENTARY ON
VATTEL'S LAW OF NATIONS,
CONSISTING OF SHORT NOTES AND PARALLEL REMARKS.
INTENDED FOR THE USE OF THE CLASS OF NATIONAL LAW AT WILLIAM AND MARY COLLEGE
In lecturing on the Law of Nature and Nations, I have not flattered myself that I should make a class of profound international Jurists. At your age nothing of the sort is to be expected, and for Students of any age the course of lectures is too short.
I have therefore proposed to myself little more than to give you an insight into the principles of National law, as a moral science. These principles do not owe their force to any human authority, and no human authority can impair it. Hence I content myself with the view presented by the wise and good man whose work is in your hands. The tone of Moderation, Justice and Benevolence, which characterizes it, gives it a universal authority in the present enlightened state of the world.
But a work written for Jurists and Statesmen is not always exactly adapted to the youthful mind. The Reason of what is advanced is not always sufficiently developed. There is sometimes a want of clearness, sometimes a want of precision, sometimes an apparent contradiction: and sometimes perhaps too much is conceded to prejudices from which the best and wisest are never wholly exempt. My purpose is to disclose to you the rationale of what you read; to explain what is obscure; to define what is vague; to reconcile apparent inconsistencies, and, in endeavoring to correct your author's prejudices, perhaps to do no more than to oppose my own prejudices to his. Your minds may not be unprofitably employed in deciding which is most in error.
You will perceive that some of the most important chapters are passed by without note or comment. The reason is that in these the writer had been most careful to express himself fully and clearly.
If these notes, thus condensed, shall serve as a profitable exercise to your minds in the art of Moral Reasoning, every end that I propose to myself will have been accomplished.
National law is more a moral than a legal science. Law is a rule of action prescribed by competent authority. Moreover, all Law implies some sanction to enforce it. Now National law is that which defines and regulates the social duties of Nation to Nation. Where then is the authority that prescribes such duties, and where the sanction that enforces them?
To find these we must go back to the individual Man, and see whether such duties appertain to him; by what authority, and with what sanctions.
We assume the maxim "cuivis Natura convenienter vivere opportet."
If then we can show that the nature of Man is such as to make society one of the conditions of his existence, we may thence infer his social duties.
Now, out of Society the Human Race could not exist, for
1. The infant would presently perish if not supplied with food and warmth.
2. The human mother, unlike other animals is hardly less helpless than her new-born babe, and she too would perish without aid.
3. The husband and father gives the needed aid only because he knows himself to be so; and this knowledge he must owe to social regulation, unless we suppose him and his family disconnected entirely from all others.
4. On that supposition it would be impossible for him at once to feed and defend his wife and child. While he hunts the deer, the tiger devours them.
This infirmity of the individual man is the strength of the Race. It binds men together, and makes the strength the knowledge and resources of the whole, the strength, knowledge and resources of each.
From this social nature we infer social duties: prescribed by the author of that Nature.
The sanction is the destruction which a neglect of them would bring on the race.
The universal law which binds all things "Natura convenienter vivere," is faithfully obeyed by all things but man. Why not by him?
He has a will wayward and perverse, passions that mislead, and a reason too short-sighted to keep him always in the path of duty.
To reform this will; to regulate these passions and enlighten this reason is the business of all Education from the cradle to the death-bed.
Even while man resists the teachings of Wisdom and Virtue, he acknowledges, in general terms, the social duties arising from his social nature.
This admission is the basis Natural Law; which teaches the duties of Man to Man.
Can he lawfully refuse to perform them?
Can he, by his own act, shake off the obligation to perform them?
Can he lawfully disable himself to perform them?
They are due to all. Can he, by leaguing with a few, free himself from his duties to the rest?
To all these questions reason answers "no."
Then a community so knit together that the performance of the duties of its members to strangers is made impracticable, must assume them.
Communities are thus bound to fulfil to other communities the duties which the members of the one owe to the members of the other as natural men.
Thus the Law of Nature becomes the Law of Nations.
It is the same code whose maxims are summed up in the rule, "Whatsoever ye would that others should do unto you, the same do ye also unto them."
Its sanction is the same that denounces "tribulation and anguish upon every soul of man that doeth evil." What is all this but Morality.
So far the Law of Nations is made up, not of positive enactments but of moral maxims.
To him that studies it the words of the Apostle are a sure guide, "Whatsoever things are true-honest-just-pure-lovely-of good repute, —these seek."
Is this true of all National Law?
No. It is only true of the necessary law, so called because our subjection to it is not a matter of choice, but an inevitable necessity imposed by the author of our Nature. There is besides this a conventional law of nature, sometimes ascertained by compact, sometimes by custom alone, by which Nations bind themselves to duties which the Law of Nature does not prescribe. Of what is called the Voluntary Law, I do not speak here. That is explained in Book III. Chap. 12.
But the necessary law interferes even with conventional laws. It admits of conventions supplementary, but not contradictory to itself.
Why? Because no convention can make it right to do wrong. What then? Do such conventions stand for nothing? By no means. They give a right to demand equivalents. This too is a decision of the Natural or Necessary Law. Such is the nature of the subject, which, while it blends with the most important and agitating questions that disturb the peace of the world, and exercises the maturest and ablest minds, yet draws its maxims and reason from a source, with which youth should contract an early familiarity, and which, we are told. God is sometimes pleased to disclose to babes and sucklings, while he hides it from the disingenuous and perverse, who seek not the truth in the love of it.
Chapter 1. — Vattel's definition of a Nation imputes Nationality to a Band of Robbers, a Crew of Pirates, a Caravan of Merchants, or the Crew of a Merchant Ship. He then predicates of Nationality, a Right to command obedience.
Now where there is a Right to command, there can be no Crime in obedience.
Hence the Soldier of a Sovereign state is not deemed a Murderer, however unrighteous the war he is engaged in. See Book III, Sec. 6.
From Vattel's premises the same might be true of a Pirate or Robber.
This would be good news to them, but fatal to others.
The same definition on the other hand puts the Caravan, se invito, in a state of outlawry.
We want therefore a better definition. I offer the following:
"A Nation, or Body Politic, is a society of men, permanently united, for the purpose of promoting their common welfare by their combined strength, and possessing of itself, by common consent, a right recognized by the rest of the world, to govern its members."
This Consent binds the individual to obey.
This Recognition by foreign powers Accepts the responsibility of the Nation in lieu of the personal responsibility of the individual.
Herein is the value of such Recognition to newly founded states.
This power of Self-Government is the test of Nationality, and Sovereignty. Hence it is not affected by Forms of Government , by unequal Alliances, by Treaties of Protection, by Tribute, by Feudal Subordination, by Subjection to the same Prince, by Confederation, or by any thing that leaves the functions of Government, even in form, in the hands of its own authorities.
Slavish submission degrades Sovereignty, but does not extinguish it.
Chap. 2. — A Nation should live in conformity to its common nature, as a Nation, and to its particular nature, as Commercial, Agricultural, &c.
Hence she should study her capabilities and cultivate them.
Self-preservation in the natural man is an inevitable duty.
So also is the duty of the State to preserve the lives of its Members.
But to preserve the Association is but an affair of prudence and policy.
He who kills himself evades the duties for which he was created.
A state disbands: the natural duties of the members remain, and may still be performed.
Self-perfection is a duty to which self-knowledge is necessary.
A Nation owes this duty to itself, to its fellow-men, and to God.
The duty of Individuals to aid in these objects is a branch of private virtue.
Vattel speaks vaguely and largely of the rights resulting from these duties, but in the end resolves all into a right to do what is not wrong; which is the true conclusion.
Chap. 3. — the Public Authority is established by the State, for its own good.
The division of laws should be threefold. 1. Fundamental, and Unchangeable except by the People. 2. Organic, yet changeable by the Government. 3. Civil and changeable by the Government.
The Government cannot change the law which creates it, and grants and defines its powers, any more than a man, standing in a tub, can lift himself by the handles.
But it ought to be at liberty to new-model the machinery it works with. E.g. the Courts.
From inattention to this distinction Constitutions are made inconvenient, and Constitutional restraints fall into disrepute, as unnecessary, frivolous and troublesome.
The People who framed the Government, and they alone can change it.
When men agree to form a body politic, a majority must have the right to fix and change at pleasure the form of Government.
But, if the first agreement to live together as a body politic contains a stipulation as to the form of Government, then all should concur to change that form; or the dissatisfied may, if they choose, withdraw.
Constitutional changes are mischievous. Men should reverence their institutions.
Time is necessary to this. We are first partial to our own work, and then capriciously fall out with it. That of our fathers we venerate. The image worshipper who made his God, and can make another, throws him into the fire when his prayers are not answered.
Chap. 4. — Vattel confuses his reader by predicating Sovereignty sometimes of the Ruler, and sometimes of the Body Politic itself whose creature the Ruler is, and whose authority he does but represent. The Body Politic is the true and only Sovereign.
This distinction solves some difficulties and corrects some errors. It shows —
In what sense private virtues are not the virtues of Kings.
The representative character of the Ruler and his duty to study, preserve and perfect the state.
His obligation to respect the Constitution.
His obligation to obey, respect and execute the laws.
The nature and extent of his subjection to them.
The absurdity of the Jus divinum.
It gets rid of the absurd paradox of an inviolability that may be forfeited!!!
It shows why Tyranny short of Usurpation may be resisted.
How it is sometimes right to disobey.
The difference between ruling by, and being ruled by a Minister.
Chap. 5. — How the tenure of office does not affect its dignity.
How that, and the order of succession may be changed.
How the idea of a patrimonial State is absurd.
How the succession is indivisible.
How the right of succession may be qualified.
How the People are the Judge of a disputed succession.
How foreign states should not interfere.
How the Rulers authority is inalienable.
How the ratification of the People is necessary even where the Prince has authority by law to appoint his successor.
Chap. 8 — The advantages of Commerce are twofold.
1. As a Convenience. It procures comforts not to be had without it.
2. As a source of Profit. This consists of the difference between the cost of production under unfavorable circumstances and the cost of production under the most favorable circumstances, added to the cost of transportation.
For the duty to prosecute Commerce. See Book II. Chap. 2.
Monopolies are evil as they discourage competition, and are partial.
They are good when they lead to enterprises which might otherwise not be undertaken.
In such cases they are just, to requite sacrifice and hazard, and reward exertion.
Vattel's idea of the Balance of Trade is exploded as absurd.
Chap. 9. — The advantage of Roads and Canals is a corollary from that of Commerce.
Being established at general expense, the use of tolls is to make those who use them pay something more than those who do not.
Hence tolls are justifiable in all cases when not excessive.
Chap. 10. — The use of coinage as as authentic evidence of the weight of metal.
The government, which can alone command universal confidence, should supply this evidence. For the same reason individuals should not be suffered to coin.
This is the true idea of the prerogative.
Hence to debase the coin is doubly criminal when done by Government.
Chap. 11. — Education. The minds of the People should be cultivated.
The question is of the Means, Kind and Extent of cultivation. In a free Country it may be easier to provide Schools than Scholars. The King of Prussia forces all persons to send their children to his schools.
In a Democracy, if Men wish to send their children, they will.
lf not, they will not enforce penalties against themselves.
But if they do it from choice there will be scholars, and if these are
able to pay for education, there will be schools.
To the extent of that education which every one can procure, there is no need of laws to provide the means of education.
Hence primary schools with us in Virginia are useless. But they are popular, as a compliment to the multitude. They are like books in the library of a King who never reads. But they are necessary for the sake of appearances, and in both cases "Suprema voluntas stat pro ratione."
But there is a degree of Education not accessible to all.
In that case, let the public lend its aid by paying salaries to Teachers.
But this is taxing some for the benefit of others.
True. But the Public is benefited too by the development of high minds, one of which pays for the education of hundreds. It is like washing for Diamonds.
But should great attainments in literature, art, and science be specifically rewarded except by employment in the public service for the public good.
Answer. Excellence in useful things can always earn its reward. Why should the public encourage excellence in what is useless? Apply this to Statuary, Historic Painting, &c. The instances given by Vattel at Sec. 113. illustrate and enforce what is here suggested. Philosophical research is sometimes said to be dangerous. Dangerous to what? To Truth?
That which has passed for Truth has often said so; but it has been since found that it was Error, not Truth that was alarmed.
Respect to established opinions needs no legal sanctions; though it has sometimes seemed so, because opinions seemed to be established which were not established.
When the innovator succeeds it commonly appears that public opinion had been in fact, on his side. When he mistakes in this the attempt fails. "He who spits against the wind spits in his own face."
So said Franklin to Paine.
None are so sensitive to public opinion as the very men who are most ready to assail what only passes for it. Vanity is the mainspring of action in such men.
At an earlier day Voltaire would have been a Loyola. Respect for public opinon is a Sentiment, and public opinion enforces it. This alone can.
There is no common measure between Sentiment and penal coercion.
Public Virtue is to be cultivated by public employment.
Office gives encouragement, influence and authority either to Virtue or to Vice.
To bestow it on Vice shows corrupt designs in the ruler.
When the People thus bestow it, the work of corruption is already done.
Public Virtue is to be encouraged by example; and it is especially the duty of all men in office to set such example, and above all is it the duty of the Ruler.
The same is true of men eminent for talent, wealth, or any other means of influence.
Love of Country is a natural sentiment, in a certain degree, and to that degree it is virtuous and valuable.
It has its rise in the best affections, and in turn it cultivates them.
In a Country addicted to conquest, injustice and rapacity it becomes excessive, and the nurse of these evils and their appropriate passions. Avarice and Ambition.
Hence Patriotism was so vivid in Rome and Greece and among Barbarians.
Chap. 13. — The Enactment of good laws and their due execution are essential to Justice.
The first belongs to the legislature. The second to the Judges.
Should the Legislator be also a Judge? No. Should he appoint Judges? No.
The Judge should be independent as a check on unconstitutional legislation.
He should be appointed by some other: his appointment is what is called an executive act, and he who makes it is called "the Executive."
Justice requires that the Judge be independent of every thing but the Law.
Hence the Executive must not control or vacate judicial decrees, but should enforce them.
The qualifications for all office (especially judicial office) are ability and virtue.
He who is wanting in these has no claim to office. To appoint such, is
To do injustice to those who have the proper qualifications;
To defraud the People of the services for which salaries are paid;
To corrupt the community by discouraging the pursuit of Wisdom and Virtue.
On all these grounds, the man best qualified for an office has a right to it.
The Ruler, who habitually chooses bad men, means to corrupt the People.
The People that knowingly chooses such a Ruler is in love with corruption.
Judges should be permanent — not occasional. Appointments of Judges to try particular cases enables the appointer to screen the guilty and destroy the innocent.
The office of Pardon is to save from the penalties of the law men convicted by mistake: —
Offenders who may be spared without impairing the security of Society; those whose punishment would offend the moral sense of the community; as for example:
Cases of technical guilt, prompted by virtuous feelings. Offences of men otherwise blameless distinguished by talent and public service.
Cases where the innocent would perish with the guilty from want or from sympathy.
This is true, whether we deduce the right to punish from self-defence or from God's Law.
Duelling is wrong; but society ought not to punish what it drives men to do.
The legislature of Virginia say he who fights shall not even be a Constable, But they elect him to the Senate. Their Law professes to express the public sentiment. Their conduct gives the lie to their testimony. They should repeal the Law, or respect its principle.
Chap. 34. — Population is but an element of strength. Without military qualities, and the resources that intelligence supplies, it is weakness. See England and China. Attila, when told of the numbers of the effeminate Romans, said "the thicker the grass the easier it is mown."
Fortitude, Frugality and Simplicity are indispensable to a people who have to defend their Liberty against GREAT odds. They have to fight under disadvantages, which the luxurious and effeminate will not agree to encounter. They will sooner submit to oppression.
A wealthy Nation fighting for Conquest may succeed, without these qualities. Courage alone will do.
A brave man fights the better for a good breakfast, if he can get it. If he cannot, he ought to be able to fight without it. In the beginning of the English Civil Wars the Cavaliers beat the Roundheads.
When their money failed their spirit sunk under hardship. Laws to encourage, or discourage marriage are alike absurd. Vattel contrasts the population of Catholic and of Protestant countries.
He mistakes the cause of the difference.
Convents discourage population by feeding useless mouths and starving Labor. If all the Nuns were mothers there would only be more hungry children to be starved off.
The difference is made by that form of despotism which commonly accompanies Popery. In Switzerland, where none such prevails. Catholic and Protestant Cantons are alike populous.
Chap. 15. — Reputation is Strength. If for Valour it inspires Fear; if for Virtue, Love.
In either case it gives Security which alone makes Power desirable. We are ashamed to quarrel with a good man; for all men will say we are in the wrong.
The Reputation for Virtue is essential to true Glory. The wise and good whose praise is Fame will not applaud splendid wickedness.
Even they who admire and envy will be ashamed to praise it. Of this Reputation the Ruler is the chief Guardian. Hence, he, above all men, should be virtuous, and encourage Virtue.
Private men too can do much for the reputation of their Country.
England owes her best fame to private men. Franklin is an honor to America, not so much in public as in private character.
Chap. 36 — Texas wisely sought to escape from Mexico by joining the United States. When she had repelled the danger, she withdrew the proposal. She may be driven to renew it.
Chap. 18. — The Earth is given to the whole human Race.
Without cultivation it will not support all.
Men will not cultivate without security in the enjoyment of their labor.
Hence it is good for mankind to agree that whoever cultivates shall acquire a right to the spot.
It is fair to presume that all have agreed to that which would be best for all.
Hence we presume a common consent, giving each people a right to the Country it cultivates.
Whence then can we derive the right of the Savage to the Country he does not cultivate.
He can have no such right as to exclude those who will cultivate.
But the right of the cultivator extends only so far as his cultivation.
He cannot claim more unless the conduct of the Savage renders more necessary for Security.
The Right of Discovery was a perfect right in Spain, and so universally acknowledged.
She fished up a jewel from the Sea, and all civilized nations agreed that it was her's.
But if she did not use it, might not others settle and cultivate?
Yes. It was hers to use; not to leave useless and desert.
The Right of Domain is a right to the country as a source of subsistence and profit.
The Right of Empire is the right to govern all who set foot upon it.
Chap. 19. — It is a common error "That, by the Law of Nature," a man's native Country is the place of his birth, and that it is positive Law that makes him a member of the society to which his father belongs. The reverse is true.
To be a member of any society is to have certain rights, and to owe certain duties.
By the l.aw of Nature the Son inherits his Father's acquisitions, and, among these his rights.
Bul rights have their correlative duties. Claiming one he must perform the other. What matter then where he is born?
He who is by the Law of Nature a native of one Country, and, by positive Law, a native of another, may have rights in both; but his natural duties belong to the first. His allegiance cannot be due to both.
Vattel is erroneously supposed to favor arbitrary Expatriation.
But he puts the right on grounds fatal to such a pretension.
1. On Necessity, which is above all Law, and supersedes it.
2. On the failure of Society in its duties to the Individual. Now if he owes nothing to them, they owe nothing to him, and there can be no such duties.
3. On positive wrong done to him, which is a stronger case of the same sort.
4. On the consent of the State — superfluous, if he have the absolute right.
Moreover he says they have not a right to cut him off, and exile him.
Then he has no right to cut them off from him. If they have no right to sunder the link that connects him to them, no more has he.
Chap. 20. — Income from Public Domain makes Government too independent of the People.
The best Revenue is that derived from the free grant of the People; because, by withholding it they may check abuses and prevent usurpation. The History of English Liberty illustrates this.
This is the true idea of Taxation. Vattel errs in ascribing it to eminent domain.
All interference with individuals in the management of their property is mischievous.
Corporations (unless created for public service) are, in this, like other individuals.
The best use of wild lands is to give them, in small portions, to actual settlers.
They should not be sold, for that creates an independent Revenue.
The sale of wild lands to individuals exhausts the people (for the time) as much as taxation to the same amount, and diminishes, by just so much, the capacity to pay taxes.
To give public lands to settlers is Politic, because they add to the resources of the Country.
It is Just, because they who have no land have a claim on the domain of which others have already got their share on the same terms — that is by settlement.
The business of settlement is one of unlooked for difficulties. He who settles wild lands on a remote frontier, pays a high price, even if they are given to him; and the public receives the benefit in taxes on his increased consumption, his exports, and the imports they bring back.
Legislative interference with the business of individuals produces ridiculous blunders. The Colonial legislature of Virginia once made it penal to dig up Tobacco-Suckers. At another time it was made penal to leave them standing.
Chap. 21. — The Power of Government over public domain depends on the Constitution.
If not given, no such Power can be lawfully exercised.
Chap. 23. — The jurisdiction over bays, &c. depends not on their size, but on the Jurisdiction over all the shores, and all the streams flowing into them.
Chapter 1. — The duty of assisting other nations in famine is a duty of Humanity.
In case of invasion and the like it is an affair of policy and calculation.
To interfere on any other ground is to be unjust to its own People.
The notion of setting an example is idle. Vattel's instance shows the consequence.
Poland saved Austria, and Austria, since Vattel wrote, aided to dismember Poland.
The duties of Nation to Nation in this respect are unlike those of Man to Man.
A Nation never falls into the water so as to be in danger of drowning.
The idea of mutual love between Nations is hardly romantic. It is merely silly.
If it were, as Vattel says, according to Man's nature, the fact would show it.
We have no means of knowing Man's nature, but by his conduct.
It is his nature to love his family and friends.
Because he loves them he does not love their enemies or cherish their rivals.
Men who make common cause array themselves against the world.
Chap. 2. — We have already considered Commerce as a source of advantage. L. 1. C. 8.
As a duty, it is enforced by the following considerations.
Man is a social animal, and his existence depends on the social affections.
Nature therefore gives these the greatest force next after feelings which are purely selfish.
These social affections are, from the nature of the case, exclusive.
They attach the individual to a small circle of friends.
Beyond that circle they engender a principle of repulsion.
But man is an intellectual and moral being, and his intellectual and moral improvement require more extended intercourse and connexions.
To lead him to these, strong incentives are necessary to overcome the exclusive and repellent effect of affections properly domestic and social.
They owe their efficacy to the infinite diversity of Man's wants, and the infinite variety of the productions of the earth influenced by all the diversities of soil, climate, &c.
These diversities are God's means to lead man to the highest moral and intellectual excellence.
If this be so, it is his duty to give them their due effect.
Moreover — God gave the earth, not to Nations in parcels, but to Man Collectively.
The Nation whose location gives her a peculiar benefit, should not monopolize it.
She should be satisfied to enjoy and derive profit from it.
What she cannot use she should dispense to others who need it.
This leads to exchange, which is Commerce. Such is God's Law, and such his sanctions.
The end is the diffusion of Civilization — Art — Science — Religion.
Commerce is the hand-maid and pioneer of these.
Sometimes she assumes their garb, and Avarice under the mask of Benevolence preaches missions to Africa, &c. &c. This hypocrisy is detestable, but it achieves God's work.
Chap. 3 — Precedency had its rise in the comparative power of different states.
The German Empire was once the greatest of European Nations.
Hence the Imperial Crown had precedence.
There were no considerable Republics in Europe.
Hence Kings had precedence of all Republics.
In the days of Roman Power the Consul took precedence of all Kings.
It was absurd to suppose that any thing could depend on the Ruler's Title.
The decay of the German Empire, the vast power of Great Britain, and the rise of the N. American Republic has exploded all this nonsense.
But when many men pass through a narrow door one must go foremost.
This precedence is now allotted to the foreign Minister who has been longest at any Court.
He takes the lead of all others. When he withdraws, his successor falls to the rear.
A high sounding title may put dangerous ideas into the Ruler's head.
On the other hand, an humble title may inspire the People with false security.
We should watch our President with more jealousy, if he was called King.
Had the Congress of the U. States been called Parliament the Constitution would have been rejected.
As it is, the tendency to Consolidation is masked by a title appropriate to an assembly of Deputies from Independent states.
Titles which do not imply claims on other nations may be foolish but they are harmless.
The Emperor of China hurts no one by calling himself "Brother to the Sun."
But the Title of King of France formerly claimed by English Kings was injurious.
Chap. 6. — The duty of a State to protect her People, and her Right to command their obedience, and to protect them from the consequences of obedience depend on each other.
These are the Essence of Sovereignty, and the tests of its existence.
The existence of either right implies that of the other two.
The duty to protect results from the right to command.
The right to protect results from the duty to protect.
The duty to command (or control) results from the right to protect.
The right to command results from the duty to command.
And so on all round the circle again.
Hence the responsibility of the State for the acts of its members, responsible to it alone.
A state is therefore bound in good faith; to prevent its members from injuring others;
To enforce reparation for injuries it has not prevented.
To repair them if practicable, when it fails to enforce reparation from the offender.
If it fails in all these it inflicts injury, and gives cause of War.
Societies which deny these duties have no right to be treated as Nations.
As they neither restrain nor punish wrong to others, they have no right to screen the offender.
The right to protect results from universal agreement to leave wrong doers to be punished by their own Sovereign. If he will not inflict punishment the injured party may.
Chap. 7. — There is a seeming inconsistency in treating with our Indians as Sovereigns, and at the same time claiming jurisdiction over their Country. How is this?
The Savage idea of Sovereignty is over Persons. Ours is over Place.
The two may well consist together.
An American kills an American in England. He must be punished there not here.
He kills an American in the Indian Country. We punish him, for if we do not no one will.
It is no offence against Indian Law for a white man to kill a white man in their Country.
They claim no Sovereignty over him, and have no idea of Sovereignty over place.
If he kills one of their people, they kill him as an enemy not as a criminal.
If an Indian kills one of us, we kill him as a criminal not as an enemy.
These ideas are not inconsistent with their acknowledged right of Domain.
They relate to the Jus imperii which they do not claim, and recognise in us so far.
On this principle it is our duty to respect the rights mentioned at S. 88, and to prevent our people from destroying their game.
Chap. 8. — Controversies are decided by the Courts and Laws of the Country where they are tried.
But the rights of the parties sometimes depend on the laws of another country.
These are then looked into, not as law to the Court, but to ascertain the rights of the parties.
Of this nature are laws concerning Interest, Land Titles — Inheritances, &c.
In many other particulars no regard is paid to foreign Laws.
Sec. 105-6. — The foreigner is bound to defend the Country that shelters him.
Vattel does not deny this. By Militia he means army — perhaps foreign service.
Into this a foreigner cannot be lawfully forced, even where men are pressed into service.
Under our laws no man can be forced to serve except in a defensive war.
The native militia cannot be forced to go abroad any more than the foreigner.
But both must defend the Country if invaded.
If they enlist as regular soldiers, both are liable to foreign service, by their own consent.
Sec. 109, 10, 11. — Inheritance in land is governed by the law of the Country where it lies. Lex loci rei sita.
In personal property by the law of the party's domicile though he die abroad. Lex domicilii.
Debts are to be paid out of it according to the law of the Country where it happens to be.
This is the Lex fori, which in the other cases adopts the Lex loci rei sita, or lex domicilii.
Chap. 9. — Inalienable rights are such as a man cannot lawfully divest himself of.
He cannot divest himself of a right to do an absolute duty.
It is his duty to preserve his life; and so he cannot divest himself of the right to live.
My land is mine because every body has consented till it shall be mine.
Then I have a right to order others off, and so has every landholder.
But if all landholders do this in concert, must landless men go into the Sea?
No. their answer is found in Sec. 117, "that the allotment of property was with a tacit reserve of a right to live," and therefore to some resting place for the sole of the foot.
Still no man has, in general, a right to go on another's Land.
But a man swimming for life has a right to land where he can.
Vattel states this vaguely because he starts wrong. He says "Nature imposes no obligations without giving the means of fulfilling them."
Well! Charity is a duty. Shall we steal leather to make poor men's shoes?"
The affair of the Sabine Rape concerned the rights of the women, which are overlooked.
They had a right not to be ravished, and it was the duty of the Sabines to protect them.
But they had a right to live with the Romans if they chose, and it was the duty of the Sabines to let them alone.
Chap. 10. — The admission of foreigners is liable to objections.
1. If numerous they may be unruly as the foreign laborers on our public works.
2. If admitted to citizenship they make common cause and control elections.
If an attempt is made to remedy this mischief they combine against it.
The foreigners in New York rule the City and cannot be put down.
Chap. 11. — He who finds what before belonged to no one, has a right to it.
He who finds what belongs to another has a right to keep it till the owner appears.
This right I should call the right of usucaption.
If the owner does not claim it he may, in time, be presumed to have relinquished it.
Hence the municipal law says that, after a certain time, he shall not have it.
The Right thus acquired by Time is Prescription.
These two things are different, and ought to have different names.
There are analogous cases in National Law.
A nation discovering and settling a vacant Country acquires a right to it at once.
Discovery alone gives a right to settle if she wilt.
If she does not settle it and another does, her right is lost by neglect. The law of Nations fixes no precise time for this, nor will the right of the discoverer be always lost by delay.
The reason of the whole matter is shown in the following questions and answers:
What is the origin of all perfect title to Land? Occupancy. What if the occupant leave the spot? He loses his title according to the law of Nature.
But the Law of Nations modifies this, and protects the title for a time.
How long may the title continue after ceasing to occupy? Till it is clearly abandoned.
How is abandonment ascertained? By long disuse.
Suppose the owner kept off by force? His right remains, and no prescription can be raised against it.
If no force be used, and the title be not claimed till another occupies and settles, who has the right in that case? The new occupant.
Will it make no difference if the owner did not intend to abandon? None; if his delay led the other to settle under the belief that he had abandoned.
Why so? Because the law of Nature gives the right to the actual occupant, and the law of Nations will not interfere on behalf of one whose negligence leads others into difficulties. The maxim applies: "Sic utere tuo ut alienum non laedas."
Chap. 12. — Treaties are but Contracts.
Contracts between Sovereign States are alone called Treaties.
Sec. 165. — I sell a horse to A. but do not deliver him. Then I sell the same horse to B, and promise to deliver him.
This promise is not void as Vattel says it is. It does not indeed bind me to deliver the horse to B. for no promise can make it right to do wrong.
But it binds me to buy him back from A. for B. if I can.
If I cannot I am bound to compensate B. for his disappointment.
Sec. 171. — It seems absurd to rely on a promise not to murder or rob.
But moral codes are various. What a Quaker calls murder we do not.
What we call murder and think wicked a Savage may think praise worthy.
But even when he thinks he has a right to kill, he may think himself bound by his word not to kill.
Hence his promise may, and often does deserve confidence.
The very looseness of the moral Code of Savages requires something they can rely on, so as to feel secure from each other.
Hence they are remarkable for fidelity to promises in their intercourse with each other.
So too with civilized men, until civilized men teach them treachery.
Sec. 178. — Unequal alliances are degrading, and to degrade another makes him an enemy at heart.
Hence unequal alliances are generally undesirable to both parties.
1. But security may make it necessary to impose restraints on a weak neighbor.
2. It may be better to subdue the rancour of the perverse by severity than to endeavor to appease it by undeserved forbearance.
3. Where gratitude prompts to voluntary concession, its acceptance will not offend.
These remarks apply to those alliances which degrade the weaker party.
A surrender of dignity by power is graceful and engaging condescension.
A treaty unequal, or otherwise odious, is presumed to be personal and temporary unless the contrary be clearly expressed.
Why? Because the inequality shows that one party had an undue advantage over the other, and was disposed to use it.
Hence he would not have left this matter doubtful, if the other would have submitted to have the inequality established permanently.
Sec. 192-3. — There are cases where treaties not strictly real bind successors.
1. Peace is made, and one King promises, as one of the terms of the treaty, to give his daughter in marriage to the other. His successor is bound to deliver the lady.
2. A King having power to cede a province gives one in exchange for a wife, or as a portion for his daughter. His successor has no right to annul the cession.
3. He promises, in a like case, to cede a province or to pay money. His successor is bound to fulfil the engagement.
All these are personal treaties but of that peculiar character denominated at Sec. 153, Conventions.
Chap, 13. — War is waged by assailing all the rights of the enemy.
Among these are his rights due from ourselves by Treaty.
Hence war puts an end to those rights and the obligations they arise from.
The violation of one article of a Treaty is just cause of War.
Hence it gives the injured party a right to put an end to that and all treaties by War.
But as this arises only in virtue of the right to make War — therefore,
To renounce the obligation of all treaties for such cause is an act of War.
But merely to withhold the equivalent of the violated stipulation is no act of War.
Sec. 203. — He who acquires a country by purchase, takes it subject to the rights of third parties; and he can get no more by surrender or conquest.
Chap. 14. — When the functions of an Officer cannot be performed without authority to treat, he has such authority virtute officii.
Hence a military commander has it; but it follows that he has no authority to treat concerning matters not belonging to his function.
If he goes beyond this, it presents a case of what is called Sponsio.
If he pretends to have other authority that he has not, he is criminal.
If he does not, but only promises to use his influence with his superior to fulfil his engagements, and he does so use it, he is answerable for no more.
If he breaks this promise, he is responsible personally.
This was the case with Posthumious who was therefore given up. But were the Romans bound to restore things to the status quo ante? Had it been practicable they would have been. Vattel's remarks to the contrary are hardly sophistical. Sophistry is argument. His is mere declamation.
But it was not possible to replace things as they were, because one of the conditions of the status quo was that the Romans had been taken by surprise, and it is absurd to talk of agreeing to be taken by surprise at a particular time and place.
The Romans were therefore bound to give an equivalent, (which was also impossible,) or to ratify the treaty of which they had had the benefit.
So Vattel teaches in all other cases. What he says here is unworthy of him.
Sec. 216. — If a state borrows money, she is bound to repay it. What is done with the money does not affect the rights of the lender.
What the State does by one duly authorised, is the act of the State. If he borrows for the state, the State borrows. If he wastes, the State wastes.
The right of the lender cannot be impaired by the folly or infidelity of her agents.
If she appoints men incompetent or unfaithful she must always take the consequences.
Here again Vattel inculcates a loose morality not worthy of him. It is absurd to say that ruinous contracts are not binding. Men ruin themselves by such contracts, but still they are universally bound by them.
The morality of contracts is the same, whoever be the parties. So when the domain is aliened by one duly authorised, the State alienes.
He who buys of the State, through her agent, has a right to his purchase.
The often cited case of the French resumption of royal grants is not to the point.
The King of France never had authority to aliene the royal domain.
His right in it was like that of a Parson to his glebe.
Hence the successor always had a right to resume.
There is more loose morality in this chapter than in all the rest of Vattel's work.
Chap. 15. — Sec. 229. — A owes B $100, and C $100. Both have a right to their money.
He provides $100 accordingly, and on that day both claim it. He must pay B. Why? C's right to be paid is as good as can be. B's therefore can be no better.
As right is the measure of obligation, the rights being equal, so must the obligation be.
All this is true, and yet we feel the conclusion to be false. How is this?
The law of God enjoins truth, fidelity and the fulfilment of promises.
There is an obligation to him to fulfil the promise made to B.
This, added to B's equal right, casts the balance in his favor. Still C's rights are not impaired by the promise made to B. He is as much wronged as if no such promise had been made. But not to have paid B, would have been to wrong him, and to sin against God.
The case of an oath is yet stronger.
These ideas reconcile Vattel with himself, (for there is an apparent contradiction between Sec. 226, 229 and 320,) and they reconcile reason with what we feel to be right.
Chap. 16. — Sec. 257. — Francis I. when taken prisoner by Charles V. was released on engaging to cede certain provinces, and gave his son as a hostage.
Vattel says, that, had he died his son should have been released.
How so? When the value of his son as a hostage depended on his rank.
Charles agreed to release the reigning King, only in consideration of having his successor as a hostage. This gave him security, that, if Francis did not perform his engagements, the son should. To say that on the death of the father the son should be released, is to deprive the pledge of all its value.
It might be argued thus:
The treaty was that the King should be released and his Succcssor a hostage.
The essence of this treaty would be fulfilled, if, when the Hostage became King, his Successor should be substituted for him.
This is sophistical, for the faithlessness of Francis had changed the condition of the case.
But Vattel assigns no reason, and leaves his opinion standing in naked absurdity.
Chap. 17. — Rules of interpretation are necessary, because
1. There is a want of precision and fixedness in all languages.
2. It is inconvenient to enumerate even all cases which may be foreseen.
3. New cases will arise, which could not be foreseen. Sec. 267. — All this means that neither party shall entrap the other by using words which he means to be understood in one way, intending afterwards to insist on a different interpretation.
A says to B "I promise so and so." These are A's words to be interpreted favorably for B.
Again A says to B, "Do you promise so and so." B says, "I do." These two are A's words, and to be interpreted in the same way, though B was induced to adopt them.
Why? Because in both cases A deliberately introduced the words. If there was a trap laid, it was laid by him, and should catch him. Hence the maxim, "Verba fortius accipiuntur contra Proferentem." In all doubtful cases the question is, "who is the proferens verba." But where the intention and motive of the promisee are plain, (as at Sec. 273,) the words must, in all cases, be interpreted in conformity thereto.
If there be two clauses one plain the other obscure, Shall the first be obscured by the last?
No. The last shall explain the first. Light radiates: Darkness does not.
Sec. 273. — No interpretation contrary to what must have been the intention of either party can be right.
This also solves the cases put at Sec. 283,291, and the like.
Interpretations are either literal or liberal.
A liberal interpretation may be either extensive or restricted.
The first extends the operation of the words beyond their literal meaning.
The second restrains it from matters which the literal meaning would embrace.
The reason and principle in both cases are the same.
Sec. 305. — One man's loss may be another's gain; but it does not follow that the good balances the evil.
A rich man made poor is made miserable by his change of condition.
A poor man made rich is not always made happy. Very often he too is made wretched.
The moral evil is great in both; for both are introduced into situations the duties of which they are unprepared to fulfil.
Men are generally happiest and most useful in the stations in which they were born.
The only exceptions are when one rises by merit, and another falls by unworthiness.
These changes will take place. All others of the kind are undesirable.
Chap. 18. — Reparation for every wrong should be demanded and insisted on.
If not fully given or offered it should be exacted by force.
But when it is frankly offered, the terms should be discussed in a spirit of compromise.
Sec. 329. — The Arbitrator is insulted by a refusal to submit to his award.
Nothing will justify it but corruption or partiality.
To refuse them, is to charge him with one of these.
The difference between Retaliation and Retortion is in the effect.
Retaliation only provokes new outrage.
Retortion puts an end to it. The one aggravates, the other cures the mischief.
Chap. 2. — The Sovereign being author and all others but instruments, the latter are not legally or morally chargeable with crime in any act of regular hostility.
But if the war be unjust there is all the guilt of murder and rapine actually incurred.
All this is the guilt of the Author, and all the miseries of war are his work.
Hence private men learn to think of war as a thing the morality of which concerns them not.
This is true in a despotic government. But we should learn to think differently.
As soldiers we may be but instruments. As citizens we are ourselves the Authors of war.
But no man lays this to heart; and hence the wars of Republics are often wanton and unjust.
A King must bear the stings of Conscience, and the reproaches of the world, for unjust war.
In a Republic every man claims his share of glory, but forgets his responsibility.
Militia should never be used but for sudden inroads. Its use is recommended by the idea that the burthens and dangers of war should be borne equally by all.
This is fallacious, for many of the militia are not called out during a war of some years.
Those who are, perform an enforced duty, never required.
The regular who enlists, serves from choice, and the expense is defrayed by all.
This establishes exact equality among all.
The regular often finds the camp a place of comparative comfort and plenty.
To the militia it is a scene of comparative privation.
The regular becomes enured to military life and learns to love it.
The other does not serve long enough, and to him it is a life of hardship.
The regular, seasoned to the camp, is safe except from the enemy.
Of the militia disease destroys many more than the sword.
The regular is commonly an idler whose time is best employed in the field.
The other is missed in seed time and harvest, in his shop, or in his study.
The loss from this is a loss to society, as well as to the individual.
The regular is commonly a single man with few or none to mourn his loss.
The death of the militiaman blights hearts and hopes, and ruins whole families.
Add to all this the notorious superiority of regulars for actual service.
Opposed to all this is the danger to freedom from regular troops.
If they are never used but in time of war, this danger is imaginary.
Regular armies will not be kept up in time of peace while freedom and the spirit of freedom remain.
Their existence is more a symptom than a cause of corruption and slavery.
The whole militia system, beyond enrolment, is a tax on the community in time of peace, producing no fruit by vanity, idleness and dissipation.
Each muster costs the Union, in time and useless expense, $1,000,000.
Sec. 13. — Vattel's partiality for Switzerland make him too indulgent to the trade of blood.
The soldier who serves his own country is a guiltless instrument.
But is he guiltless who murders for pay in a foreign quarrel?
Wherein does he differ from the hired bravo?
The case is changed, if he fights in what he deems a righteous cause, the cause of justice and freedom, and therefore the cause of mankind, and his own among the rest.
Sec. 15. — The offender in this case cannot justify himself by the command of his Sovereign, because the authority of his Sovereign does not extend to a friendly state.
He cannot be compelled to obey, and is not bound to do.
The case is different when he comes in hostile array. He is under coercion: and the authority of his Sovereign supersedes that of the invaded country.
Chap. 3. — War should have its object, its cause and its motive.
To be prudent there should be an object to be attained adequate to the moral and physical evil of war.
The advantage, which is contingent, should far exceed the evil, which is certain.
To be just, there should be a clear wrong done, or a clear right to be asserted: or the other party must have refused to settle amicably an important doubtful demand.
To be honorable the motive must be identical with the cause.
To make a trivial injury a pretext for a war of conquest is dishonorable.
Indeed as soon as the wrong is redressed the cause ceases. Thenceforth the war is without cause.
Such cases are common. They are like that of the duellist who fastens a quarrel on a rival in politics, business, or love, to kill him out of the way.
He may conform to all the laws of the duel, and yet be the worst of murderers.
If these ideas were generally acted on, wars would be very rare, and the world much happier.
But they are frequent, because nations are neither prudent, just nor honorable.
For this they deserve to suffer, and they execute righteous judgment on themselves.
The Greeks allied their rapacity with Alexander's ambition, and ruined themselves.
The alleged Cause of war with Persia was a dread of her Power.
The true Motive was a conviction of her Weakness, and her Wealth.
All nations act thus by turns, and all the time reproach each other as enemies of the human race.
So true is it that "Hypocrisy is the tribute that Vice pays to Virtue."
Sec. 40. — This seeming paradox means only that both parties are equally entitled to the benefit of the laws of war, as between each other, and as it regards neutrals. Sec B. 3, c. 12.
Sec. 48. — The value of the balance of power is as a protection to the weak against the strong.
Henry IV. proposed to make it a pretext to oppress and crush the weak.
Sec. 50. — Preparation and counter preparation are things in which Kings agree to rival each other, that they may oppress, plunder and enslave their people. In this they make common cause. Though otherwise enemies, they play this game into each other's hands.
Sec. 56, 64. — Declarations of war should always be made. They fix the date at which the rights of war commence, and this is often very important to the rights of individuals. Note 146.
Chap. 7. — Nations addicted to peace complain of the Laws of War as unjust to neutrals.
But though constantly cavilled at, no part of the Law of Nations is better established.
I propose to show that they are less unjust, than at first they seem to be; and
To explain why they have been so long submitted to.
1. The Law of Contraband increases the risk at which contraband goods are transported.
But they are articles which the Belligerent must have at any price.
He is willing therefore to indemnify the risk, and in buying the cargo that comes safe to port, he pays for the cargo that is captured.
This seems like paying one man for another man's loss. But it is not so.
Both cargoes are insured, and the profit of marine insurance in time of war shows, that more is gained to the neutral by the risk, than is lost by it.
The reason is that there is no limit to the premium the belligerent can be made to pay.
The loss falls heavily on him, and the party which is weakest at sea is always trying to engage neutrals in a crusade against the law of contraband.
2. The same remarks apply with increased force to the law of blockade.
3. The right to search neutral ships for enemies goods admits of no such compensation.
But all that can be urged against it is the fanciful idea of the sanctity of the flag.
On board of Government ships the flag is, and ought to be sacred, for it plights the faith of the Nation that it covers nothing that it ought not to cover.
The flag of the merchant has no such meaning, and it is no just cause of offence to examine whether it does not cover contraband, or enemies goods.
These, if found, are confessedly liable to be taken.
The right to take them implies the right to search for them, when it can be done without any indignity to the nation.
When the nation hoists the flag, it must be respected.
The honor of the Nation is not concerned in the individual that hoists it.
There is then small injustice in these laws, and little reason why neutrals should go to war on account of them.
But there are many considerations to induce them to wish to remain at peace.
There is no trade so profitable as that of Neutrals in time of war.
The value of contraband articles is increased by the necessities of war.
The value of other productions is increased by the interruption of the production of the belligerents, whose laborers are taken to bear arms.
Neutrals monopolize the carrying trade of the power weakest at sea.
They charge extravagant freights, and, when captured, the captor pays freight.
If the neutral goes to war she loses all these advantages. When she becomes belligerent she changes her position, and becomes sensible of the value of the law to her as a belligerent, which, as a neutral, she objected to.
The laws of war are dictated by the stronger party, and are best for him.
If the neutral, going to war for neutral rights, prevails in the contest, she as the stronger party adopts and enforces the very code she warred against.
It is plainly seen then that these laws will not be relaxed. Hence they are acquiesced in, and the neutral submits to a slight curtailment of the advantages of neutrality, sooner than throw away the whole.
Chap. 9. — We have no right to inflict injuries which do not conduce to the lawful end of war.
If we do so the enemy will have a right to retaliate, and will be sure to retaliate.
In such case the offender may be supposed to know that he has done wrong.
Knowing this, and suffering for it, he may be expected to desist. But we have a right to do whatever conduces to the lawful end of war. This right should not be abused; but if it be the enemy should not retaliate.
It is not to be supposed that he who has but exercised a known right will feel himself in the wrong.
Hence retaliation will not make him desist, but will provoke new excesses.
Thus, in the first case, retaliation puts an end to the evil.
In the second, it perpetuates and increases it.
Chap. 10. — Crime consists in inflicting a wrong, or withholding a right.
If a man has a right to know the truth, it is wrong to withhold it.
A fortiori is it wrong to make him believe what is not true.
If a man has no right to know the truth, we are not bound to tell him.
A fortiori if his knowledge of the truth would be injurious to us. In such case we have a right to hide it from him. If this can only be done by deceiving, we have a right to deceive. Hence Walter Scott justified his denial of his writings. The discovery of the author injured him, for it dispelled the charm of mystery, and checked the sale of his works.
On the same principle stratagems in war are universally justified. There is no moral difference between deceiving by word, and by act. If no right be withheld or wrong done, there is no crime in either case.
He who asks what he has no right to ask is not injured by a false answer.
Honorable men indeed dislike to say what is not true. Hence he who asks a question he has no right to ask, inflicts an injury.
If he obtains a false answer, the fault is his own. A man may lawfully hide his money from a robber, and say that he has none.
A very sensitive man might dislike even to do this, but his right is unquestionable.
But even in war, all stratagems are not alike lawful.
It is wrong to deceive by a false show of Friendship such as a flag of truce.
Or by a false show of distress, such as signals of distress.
This is to take advantage of confidence or benevolence.
To invite an attack, by laying yourself apparently open to it is lawful.
You ask no confidence, and only turn the enemy's hostility against him.
Sec. 179. — Spies are not punished as criminals, but killed as enemies.
The defence we use against them is adapted to their mode of warfare.
We endeavor to prevent their attack by the dread of consequences.
To inspire this their destruction, in case of detection, is made inevitable.
With the same view we call it punishment, and superadd the idea of infamy by inflicting the death due to ignominious crime.
All this does but enhance the merit of him who braves it to serve his country.
Yet association of ideas operates so far that men of delicate and fastidious honor will not consent to act as spies.
Yet a bold and faithful spy is esteemed above others of that class of men from among which spies are commonly selected. How comes this strange paradox.
It has its rise in conventional and artificial notions of honor.
He who becomes a spy Agrees To Be Hanged if detected.
This conventional honor forbids its votaries to agree to be Hanged in any event.
It is thus honorable to serve our country; honorable to brave death, but dishonorable to incur the risk of being Hanged.
Hence no man is liable to be forced to serve as a spy, and hence spies
are taken from among those anomalous character in which fidelity, courage, address and sagacity are found alloyed with something grovelling and base.
This character combined with the Form of trial and execution associates the idea of criminality with the act of the spy.
But if there be any guilt the employer is most guilty.
Yet the employment of spies is held clearly lawful, and the commander, who puts a spy to death, has his own spies in the enemies camp.
Yet the spy has no right to complain of his fate, for he bargained for it fairly,
Hence spies are paid liberally.
So too the employer never complains for the thing is understood by all parties.
General Clinton did indeed intercede for Andre; but his case was peculiar.
He was technically a spy, for he was in disguise within the American lines.
But he did not mean to go there at all, and was led into them by mistake and the treachery of that Double Traitor Arnold.
On this ground (while willing to be shot) claimed a right not to be hanged, because not having consented to be a spy, he had not consented to be hanged if caught.
I offer these thoughts as an analysis of the complex and inconsistent ideas which the mind associates with a spy. Inattention to the principle of the case of spies had led to false argument by supposed analogy, and to dangerous mistakes, McLeod's case is an example.
It may be doubted whether the treatment of spies should not be exploded as a relic of ancient barbarism. They commit no crime. Why not treat them as prisoners of war?
A spy may indeed be, (and he often is,) guilty of treachery, and therein criminal.
Let him be punished accordingly; but take away the infamous punishment of the mere spy, and his duty would be performed by men incapable of baseness.
Chap. 12, 13. — Here we find the meaning and effect of the voluntary Law of Nations.
War, which is slaughter, desolation and misery, must be attended by Crime.
But who is guilty? Not the soldier, for he is but an instrument.
The guilt then lies on the Sovereign, and one party, at least, is always guilty.
But who is to sit in judgment on a sovereign, when other sovereigns are but his equals?
God alone, who is above all, and who alone can inflict the due penalty.
The necessary law teaches us what this judgment may be supposed to be.
The voluntary law forbids other nations to interfere with that freedom of will and conscience which they claim for themselves,
Hence, apparently, it is called voluntary because it leaves the will free.
The effect is that neutrals must consider each party equally entitled to all the rights of belligerents growing out of the state of war.
Each party too must consider the other entitled to the benefit of all the laws of war.
It is curious to see what would be the consequence if this were not so.
Neutrals denying belligerent rights to one party and allowing them to the other, they would be involved in war, and it might become universal.
One party, denying the rights of war to the other, might burn, destroy and refuse quarter.
This would provoke retaliation, and put an end to the humane laws of war.
Instead of favoring war then, the voluntary law checks the horrors of war.
Moreover if punishment were to be inflicted it would fall on individuals.
Would you treat the soldier as a malefactor when the sovereign alone is guilty?
The voluntary law does in effect decide, that the rights of the individual shall not be affected by the injustice of his Sovereign's cause and conduct.
This natural justice prescribes, and hence Vattel well concludes that the Voluntary Law of Nations is enjoined by the necessary law, which forbids all injustice.
Nothing here said applies to the case of one who shews himself Hostis humani generis, against whom all may make common cause.
It only applies to those who do not make common cause but remain neutral.
Whatever they allow as lawful to one belligerent they must allow to both.
Even when common cause is made against a hostis humani generis, natural law protects his subjects from being treated as malefactors.
The Sovereign alone is guilty, and should be hunted to destruction.
Hence the doom to which the nations of Europe consigned Bonaparte.
Their war was not with France, but with him. If they were right in the War, they were right in the Use they made of victory.
Chap. 13. — Sec. 201. — To be useful to the Sovereign a country should be prosperous.
A conqueror never enjoys the full benefit of a Conquest, till the People are reconciled to him.
Hence conquered provinces should not be made to suffer for the faults of the enemy.
To plunder them is not to plunder the enemy but ourselves.
If their prosperity be promoted they become faithful subjects, and the overflowing of their abundance fills the treasury.
Oppress them and you embitter their enmity and make them dangerous, not useful.
That which should be the "stone of Ajax in the hand, becomes a mill-stone around the neck."
Chap, 14. — In whatever is restored, by the Treaty of Peace Postliminium takes effect.
In whatever is ceded to the enemy it is lost.
Prisoners are considered as being released by Peace, without naming them.
Every thing else in the enemy's hands will be lost forever unless the Treaty stipulates for its restoration.
Chap. 15. — Observe that this only applies to inroads made by private persons.
An invader has no right to consider the hostile acts of the citizens as crime.
Sec. 229. — The right to take enemy's property has been shown to belong to the Sovereign.
He may delegate this privilege to any one he thinks proper. In case of Privateers, this is done by Commission. A Privateer without commission takes, without authority, what belongs not to him but the Sovereign.
He is therefore a Robber and Pirate and treated as such.
The same principle condemns Soldiers who plunder without leave. Sec. 164.
Chap. 16. — Sec. 245. — Nothing aggressive is allowable in time of truce.
Any thing not aggressive, may be attempted in secret.
If not discovered the event proves it might have been done, if there had been no truce.
If discovered that proves the contrary, and the attempt, if resisted, should be given up.
Chap, 17. — Enemy's property when taken (except by commission) belongs to the Sovereign.
The same principle applies to Prisoners. He, who should, at this day ransom a Prisoner, would be treated as a bribed Traitor. The Prisoner is his Sovereign's —; not his.
Chap. 18. — the difference between Insurrection and Civil War is twofold.
1. Between the things themselves. 2. Between their effects and consequences.
1. When confined to a neighborhood, or a few persons here and there, it is Insurrection.
When large provinces rise as one man, or the people are nearly divided, it is Civil War.
2. In insurrection the insurgents are treated as Criminals.
In Civil war they are treated as enemies according to the laws of war.
There is sound reason for this discrimination. 1. Moral. 2. Political.
1. Might does not make right; but what only few complain of is no general grievance.
That which a whole province or half a nations resists is always a great evil.
Men should not be deemed criminal in resisting actual and general grievances.
The number engaged affords a presumption that their opinion is right.
Even if wrong, the number makes them think themselves right.
When all we see are of our opinion, we are then sure we are right.
There can be no moral guilt where men faithfully act in pursuance of opinions which do not, in themselves denote moral depravity.
Morality then prescribes forbearance in Civil War, and after it is ended.
2. Policy too prescribes it; for the enemy during the war has power to retaliate severely and will do so.
In insurrection you punish with small danger of retaliation. When Civil war is ended, we may punish safely. But whom shall we punish?
Not the whole multitude. Quicquid multis pecatur inultim, is a sound maxim.
The general good alone justifies punishment.
This cannot be promoted by the massacre of half a nation.
If we take the ringleaders, we sacrifice the best men, and slay the mind of the country.
Freedom's friends always perish when the halter gleans what the sword spares.
Hence Civil Wars always end in the establishment of arbitrary power, for the ideas here advanced are rarely acted upon.
One of the advantages of a federate republic is that it guards against this.
In Civil War both parties act under authority, they may be excused Chap. 1. — It is absurd to say that War is Man's natural State. If so, men would fight, from instinct, at first sight. But in fact they are friendly at first sight, if no cause of quarrel be suspected.
A man long alone (as in a Wilderness) longs for the sight of a human face.
He desires nothing so much as a Companion.
If two such meet, they instantly become fast friends.
Moreover Man is strong to inflict, but feeble to endure.
The Tiger's tenacity of life is proportioned to the teeth and claws of his race.
Art has increased mans means of destruction but not his tenacity of life.
No animal of the same size is so easily destroyed, and none has such powers of destruction.
If naturally hostile, they would soon destroy each other. If Tigers could find and kill each other as men can, the race would be extinct.
Moreover children can not be raised without Peace and Security. The helpless mother would starve, end the ants would devour her new-born infant.
How then can we say that a state of existence is natural to man, in which the race of man must soon cease to exist? Society is to Man what water is to a Fish.
He is not in it by mistake or chance but because he cannot live out of it.
Peace is essential to Freedom. War requires too much power in Government.
War disturbs all happiness, and especially domestic happiness. In Peace, the fireside, the nursery of Virtue is undisturbed. It affords leisure for the cultivation of Art and Science.
It leaves the Channels of Commerce open to the introduction of all we need, in exchange for all we have to spare.
It affords leisure for the advancement of individual prosperity.
It cheapens all things and multiplies comforts and enjoyments.
It enables men to become wiser, better and happier.
Hostis pacis Hostis humani generis.
Chap. 2. — Sec. 19. — It is sometimes hard to ascertain the exact point of controversy.
Hence the use of manifestoes, or declarations of War setting forth the cause of War.
If War be made to obtain reparation for a specific aggression, and reparation is not obtained, or provided by the treaty of Peace, the demand is surrendered, but the injured party may again go to war for similar aggressions.
But if the aggression be justified on principle, and we war against the principle, the result may be different.
Thus when we demand a Treaty relinquishing the principle, and go to War because the other party will not make such a Treaty, then if we make peace without obtaining the object, we give up the principle itself.
These things should plainly appear in the manifesto; and thus War is made an instrument of Peace, which is all it is good for.
Chap, 7. — Sec. 100. — The case of Savage shows that no minister ought to be amenable to the authority of the Court to which he is sent.
It shows that if he be so in any case whatever, that very case will be proved against him if his fidelity and zeal make him obnoxious.
His judges are the officers of one who wishes to destroy him.
The witnesses against him are the subjects of his enemy.
If it be said he can be convicted only on his own confession, they will say he confessed.
They said that Savage confessed, what we now know must have been false.
If he confessed under torture, that itself was punishment without proof.
If he was not tortured it cannot be true that he confessed.
A Memento of JUDGE BEVERLY TUCKER,
Professor of Law in William & Mary College
Henry M. Vaider