§ 1. Definition of war.(136)

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.

§ 2. Public war.(136)

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.

§ 3. Right of making war.(136)

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.

§ 4. It belongs only to the sovereign power.(137)

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.

§ 5. Defensive and offensive war.

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.


§ 6. Instruments of war.(138)

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.

§ 7. Right of levying troops.(139)

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)

§ 8. Obligation of the citizens or subjects.(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.

§ 9. Enlisting or raising of troops.

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.

§ 10. Whether there be any exemptions from carrying arms.

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.

§ 11. Soldiers' pay and quarters.

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.

§ 12. Hospitals for invalids.

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.

§ 13. Mercenary soldiers.

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.

§ 14. What is to be ob-

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.

§ 15. Enlisting in foreign countries.

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.

§ 16. Obligation of soldiers.

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.

§ 17. Military laws.

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.

§ 18. Military discipline.

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.

§ 19. Subordinate powers in war.

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.

§ 20. How their promises bind the sovereign.

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

§ 21. In what cases their promises bind only themselves.

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.

§ 22. Their assumption of an authority which they do not possess.

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.

§ 23. How they bind their inferiors.

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.


§ 24. War never to be undertaken without very cogent reasons.

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!

§ 25. Justificatory reasons, and motives for making war.

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.

§ 26. What is in general a just cause of war.

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.

§ 27. What war is unjust.

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.

§ 28. The object of 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

§ 29. Both justificatory reasons and proper motives requisite in undertaking a war.

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.

§ 30. Proper motives.

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.

§ 31. War undertaken upon just grounds, but from vicious motives.

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.

§ 32. Pretexts.

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.

§ 33. War undertaken merely for advantage.

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,

§ 34. Na-

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.

§ 35. How defensive war is just or unjust.

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.

§ 36. How it may become just against an offensive war which at first was just.

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

§ 37. How an offensive war is just in an evident cause.

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.

§ 38. In a doubtful cause.

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.

§ 39. War cannot be just on both sides.

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.

§ 40. Some-

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.

§ 41. War undertaken to punish a nation.

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.

§ 42. Whether the aggrandizement of a neighbouring power can authorize a war against him.

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.

§ 43. Alone and of itself, it cannot give a right to attack him.

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.

§ 44. How the appearances of danger give that right.

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.

§ 45. Another case more evident.

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.

§ 46. Other allowable means of defence against a formidable power.

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.

§ 47. Political equilibrium.

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.

§ 48. Ways of maintaining it.

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.

§ 49. How he who destroys the equilibrium may be restrained, or even weakened.

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.

§ 50. Behaviour allowable towards a neighbour preparing for war.

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.


§ 51. Declaration of war.(142)

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.

§ 52. What it is to contain.

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.

§ 53. It is simple or conditional.

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.

§ 55. Formalities of a declaration of war.(143)

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.

§ 56. Other reasons for the necessity of its publication.(143)

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.

§ 57. Defensive war requires no declarations.

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.

§ 58. When it may be omitted in an offensive war.

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.

§ 59. It is not to be omitted by way of retaliation.

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.

§ 60. Time of the declaration.

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

§ 61. Duty of the inhabitants on a foreign army's entering a country before a declaration of war.

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.

§ 62. Commencement of hostilities.

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.

§ 63. Conduct to be observed towards the subjects of an enemy, who are in the country at the time of the declaration of war.(144)

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,"

§ 64. Publication of the war, and manifestoes.

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

§ 65. Decorum and moderation to be observed in the manifestoes.

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.

§ 66. What is lawful war in due force.

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)

§ 67. It is to be distinguished from informal and unlawful war.

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.

§ 68. Grounds of this distinction.

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.


§ 69. Who is an enemy.(147)

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.

§ 70. All the subjects of the two states at war are enemies.

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.

§ 71. and continue to be enemies in all places.

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.

§ 72. Whether women and children are to be accounted enemies.

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.

§ 73. Things belonging to the enemy.

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.

§ 74. continue such everywhere.

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.

§ 75. Neutral things found with an 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)

§ 76. Lands possessed by foreigners in an enemy's country.

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.

§ 77. Things due to the enemy by a third party.

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.


§ 78. Treaties relative to war.

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.

§ 79. Defensive and offensive alliances.

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.

§ 80. Difference between warlike associations and auxiliary treaties.

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.

§ 81. Auxiliary troops.

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.

§ 82. Subsidies.

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.

§ 83. When a nation is allowed to assist another.

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.

§ 84. and to make alliances for war.

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.

§ 85. Alliances made with a nation actually engaged in war.

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?

§ 86. Tacit clause in every warlike alliance.

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.

§ 87. To refuse succours for an unjust war is no breach of alliance.

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.

§ 88. What the casus fœderis is.

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.

§ 89. It never takes place in an unjust war.

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.

§ 90. How it exists in a defensive war.

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.

§ 91. and in a treaty of guarantee.

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.

§ 92. The succour is not due under an inability to

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.

§ 93. Other cases.

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.

§ 94. Refusal of the succours due in vir-

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.

§ 95. The enemy's associates.

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.

§ 96. Those who make a common cause with the enemy are his associates

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).

§ 97. And those who

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.

§ 98. Or who are in an offensive alliance with him.

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.

§ 99. How a defensive alliance as-

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).

§ 100. Another case.

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.

§ 101. In what case it does not produce the same effect.

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).

§ 102. Whether it be necessary to declare war against the enemy's associates.

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.


§ 103. Neutral nations.(151)

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.

§ 104. Conduct to be observed by a neutral nation.

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.

§ 105. An ally may furnish the succour due from him, and remain neuter.

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.

§ 106. Right of remaining neuter.

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.

§ 107. Treaties of neutrality.

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.

§ 108. Additional reason for making these treaties.

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.

§ 109. Foundation of the rules of neutrality.

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: —

§ 110. How levies may be allowed, money lent, and every kind of things sold, without a breach of neutrality.

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.

§ 111. Trade of neutral nations with those which are at war.

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)

§ 113. Whether such goods may be confiscated.

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.

§ 114. Searching

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."5At 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)

§ 115. Enemy's property on

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)

§ 116. Neutral property on board an enemy's ship.

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)

§ 117. Trade with a besieged town.(159)

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

§ 118. Impartial offices of neutrals.

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.

§ 119. Passage of troops through a neutral country.

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.

§ 120. Passage to be asked.

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.

§ 121. It may be refused for good reasons.

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.

§ 122. In what case it may be forced.

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.

§ 123. The fear of danger authorizes a refusal.

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.

§ 124. or a demand of every reasonable security

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.

§ 125. Whether always necessary to give every kind of security required.

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.

§ 126. Equality to be observed towards both parties as to the passage.

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.

§ 127. No complaint lies against a neutral state for granting a passage.

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.

§ 128. This state may refuse it from a fear of the resentment of the opposite party.

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.

§ 129. And lest her country should become the theatre of war.

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.

§ 130. What is included in the grant of passage.

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.

§ 131. Safety of the passage.

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.

§ 132. No hostility to be committed in a neutral country.

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.

§ 133. Neutral country not to afford a retreat to troops, that they may again attack their enemies.

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.

§ 134. Conduct to be observed by

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.

§ 135. A passage may be refused for a war evidently unjust.

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


§ 136. General principles of the rights against an enemy in a just war.(161)

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.

§ 137. Difference between what we have a right to do and what is barely allowed to be done with impunity between enemies.

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.

§ 138. The right to weaken an enemy by every justifiable method.

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.

§ 139. The right over the enemy's person.

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.

§ 140. Limits of this right.

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

§ 141. A particular case, in which quarter may be refused.

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.

§ 142. Reprisals(162)

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.

§ 143. Whether a governor of a town can be punished with death for an obstinate defence.

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.

§ 144. Fugitives and deserters.

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.

§ 145. Women, children, the aged, and sick.

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

§ 146. Clergy, men of letters, &c.

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.

§ 147. Peasants, and,

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.

§ 148. The right of making prisoners of war.

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.

§ 149. A prisoner of war not to be put to death.

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.

§ 150. How prisoners of war are to be treated.

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.

§ 151. Whether prisoners, who cannot be kept or fed, may be put to death.

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.

§ 152. Whether prisoners of war may be made slaves.

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.

§ 153. Exchange and ransom of prisoners.

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.

§ 154. The state is bound to procure their release.

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.

§ 155. Whether an enemy may lawfully be assassinated or poisoned.

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

§ 156. Whether poisoned weapons may be used in war.

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.

§ 157. Whether springs may be poisoned.

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)

§ 158. Dispositions to

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.

§ 159. Tenderness for the person of a king who is in arms against us.

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.


§ 160. Principles of the right over things belonging to the enemy.(164)

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.

§ 161. The right of seizing on them.

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.

§ 162. What is taken front the enemy by way of penalty.

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.

§ 163. What is withheld from him, in order to oblige him to give just satisfaction.

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.

§ 164. Booty.

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.

§ 165. Contributions.

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?

§ 166. Waste and destruction.

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.

§ 167. Ravaging and burning.

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.

§ 168. What things are to be spared.

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.

§ 169. Bombarding towns.

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

§ 170. Demolition of fortresses.

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.

§ 171. Safe guards.

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.

§ 172. General rule of moderation respecting the evil which may be done to an enemy.

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.

§ 173. Rule of the voluntary law of nations on the same subject.

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.


§ 174. Faith to be sacred between enemies.

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)

§ 175. What treaties are to be observed between enemies.

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.

§ 176. On what occasions they may be broken.

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

§ 177. Of lies.

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.

§ 178. Stratagems and artifices in war.

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.

§ 179. Spies.

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.

§ 180. Clandestine seduction of the enemy's people.

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

§ 181. Whether the offers of a traitor may be accepted.

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.

§ 182. Deceitful intelligence.

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.


§ 183. An unjust war gives no right whatever.

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.

§ 184. Great guilt of the sovereign who undertakes it.

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!

§ 185. His obligations.

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.

§ 186. Difficulty of repairing the injury he has done.

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.

§ 187. Whether the nation and the military are bound to any thing.

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.


§ 188. Nations not rigidly to enforce the law of nature against each other

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.

§ 189. Why they ought to admit the voluntary law of nations.

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.

§ 190. Regular war, as to its effects, is to be accounted just on both sides.

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.

§ 191. Whatever is permitted to one party, is so to the other.

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.

§ 192. The voluntary law gives no more than

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.


§ 193. How war is a method of acquisition.

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.

§ 194. Measure of the right it gives.

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.