CHAPTER I. WHAT IS LAWFUL IN WAR.
Footnotes for Chapter I
CHAPTER II. IN WHAT MANNER THE LAW OF NATIONS RENDERS THE PROPERTY OF SUBJECTS ANSWERABLE FOR THE DEBTS OF SOVEREIGNS. THE NATURE OF REPRISALS.
CHAPTER III. ON JUST OR, SOLEMN WAR ACCORDING TO THE LAW OF NATIONS ON DECLARATIONS OF WAR.
Footnotes for Chapter III
CHAPTER IV. ON THE RIGHT OF KILLING AN ENEMY IN LAWFUL WAR, AND COMMITTING OTHER ACTS OF HOSTILITY.
CHAPTER V. ON THE RIGHT TO LAY WASTE AN ENEMY'S COUNTRY, AND CARRY OFF HIS EFFECTS.
CHAPTER VI. ON THE ACQUISITION OF TERRITORY AND PROPERTY BY RIGHT OF CONQUEST.
Footnotes for Chapter VI
CHAPTER VII. ON THE RIGHT OVER PRISONERS OF WAR.
CHAPTER VIII. ON EMPIRE OVER THE CONQUERED.
CHAPTER IX. OF THE RIGHT OF POSTLIMINIUM.
Footnotes for Chapter IX
(this edition is not a complete translation of the text)
CHAPTER XI. THE RIGHT OF KILLING ENEMIES, IN JUST WAR, TO BE TEMPERED WITH MODERATION AND HUMANITY.
Footnotes for Chapter XI
CHAPTER XII. ON MODERATION IN DESPOILING AN ENEMY'S COUNTRY.
Footnotes for Chapter XII
CHAPTER XIII. ON MODERATION IN MAKING CAPTURES IN WAR.
Footnotes for Chapter XIII
(this edition is not a complete translation of the text)
CHAPTER XV. ON MODERATION IN ACQUIRING DOMINION.
Footnotes for Chapter XV
CHAPTER XVI. ON MODERATION WITH RESPECT TO THINGS EXCLUDED FROM THE RIGHT OF POSTLIMINIUM BY THE LAW OF NATIONS.
Footnotes for Chapter XVI
CHAPTER XVII. RESPECTING THOSE WHO ARE NEUTRAL IN WAR.
(this edition is not a complete translation of the text)
CHAPTER XIX. ON GOOD FAITH BETWEEN ENEMIES.
Footnotes for Chapter XIX
CHAPTER XX. ON THE PUBLIC FAITH, BY WHICH WAR IS CONCLUDED; COMPRISING TREATIES OF PEACE, AND THE NATURE OF ARBITRATION, SURRENDER HOSTAGES, PLEDGES.
Footnotes for Chapter XX
CHAPTER XXI. ON FAITH DURING THE CONTINUANCE OF WAR, ON TRUCES, SAFE-CONDUCTS, AND THE REDEMPTION OF PRISONERS.
CHAPTER XXII. ON THE FAITH ON THOSE INVESTED WITH SUBORDINATE POWERS IN WAR.
(this edition is not a complete translation of the text)
CHAPTER XXIV. ON TACIT FAITH.
Footnotes for Chapter XXIV
CHAPTER XXV. CONCLUSION.
What is lawful in war—General Rules derived from the law of nature—Stratagems and lies—Arrangement of the following parts—First rule, all things necessary to the end lawful—Right resulting not only from the origin of a war, but from causes growing out of the same—Certain consequences justifiable, though not originally lawful—What measures are lawful against those who furnish an enemy with supplies—Stratagems—Negative—Positive—Sometimes allowable to use words in a sense different from the general acceptation—A lie according to the true notion of it injurious to the rights of others—Falsehood allowable in order to deceive children or madmen—Any one addressing another without intentions to deceive, not answerable for the misconceptions of a third person—A person not answerable for the willful mistakes of those to whom he speaks—The fictitious threats of a person in authority—Fiction allowable in order to save the lives of the innocent, or to promote other equally important purposes—Deception lawful against an enemy, but not including promises, or oaths—To forbear using this privilege an act of generosity and Christian simplicity—Not allowable to urge others to what is unlawful for them, but not for us to do—Allowable to use the services of deserters.
I. HAVING, in the preceding books, considered by what persons, and for what causes, war may be justly declared and undertaken, the subject necessarily leads to an inquiry into the circumstances, under which war may be undertaken, into the extent, to which it may be carried, and into the manner, in which its rights may be enforced. Now all these matters may be viewed in the light of privileges resulting simply from the law of nature and of nations, or as the effects of some prior treaty or promise. But the actions, which are authorised by the law of nature, are those that are first entitled to attention.
II. In the first place, as it has occasionally been observed, the means employed in the pursuit of any object must, in a great degree, derive the complexion of their moral character from the nature of the end to which they lead. It is evident therefore that we may justly avail ourselves of those means, provided they be lawful, which are necessary to the attainment of any right. RIGHT in this place means what is strictly so called, signifying the moral power of action, which any one as a member of society possesses. On which account, a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack, though he who makes it, as for instance, a soldier in battle, in doing so, is guilty of no crime. For this is a right resulting not properly from the crime of another, but from the privilege of self-defence, which nature grants to every one. Besides, if any one has SURE and UNDOUBTED grounds to apprehend imminent danger from any thing belonging to another, he may seize it without any regard to the guilt or innocence of that owner. Yet he does not by that seizure become the proprietor of it. For that is not necessary to the end he has in view. He may DETAIN it as a precautionary measure, till he can obtain satisfactory assurance of security.
Upon the same principle any one has a natural right to seize what belongs to him, and is unlawfully detained by another: or, if that is impracticable, he may seize something of equal value, which is nearly the same as recovering a debt. Recoveries of this kind establish a property in the things so reclaimed; which is the only method of restoring the equality and repairing the breaches of violated justice. So too when punishment is lawful and just, all the means absolutely necessary to enforce its execution are also lawful and just, and every act that forms a part of the punishment, such as destroying an enemy's property and country by fire or any other way, falls within the limits of justice proportionable to the offence.
III. In the second place, it is generally known that it is not the ORIGIN only of a just war which is to be viewed as the principal source of many of our rights, but there may be causes growing out of that war which may give birth to additional rights. As in proceedings at law, the sentence of the court may give to the successful litigant other rights besides those belonging to the original matter of dispute. So those who join our enemies, either as allies or subjects, give us a right of defending ourselves against THEM also. So too a nation engaging in an unjust war, the injustice of which she knows and ought to know, becomes liable to make good all the expences and losses incurred, because she has been guilty of occasioning them. In the same manner those powers, who become auxiliaries in wars undertaken without any reasonable grounds, contract a degree of guilt and render themselves liable to punishment in proportion to the injustice of their measures. Plato approves of war conducted so far, as to compel the aggressor to indemnify the injured and the innocent.
IV. In the third place, an individual or belligerent power may, in the prosecution of a lawful object, do many things, which were not in the contemplation of the original design, and which in THEMSELVES it would not be lawful to do. Thus in order to obtain what belongs to us, when it is impossible to recover the specific thing, we may take more than our due, under condition of repaying whatever is above the real value. For the same reason it is lawful to attack a ship manned by pirates, or a house occupied by robbers, although in that ship, or that house there may be many innocent persons, whose lives are endangered by such attack.
But we have had frequent occasion to remark, that what is conformable to right taken in its strictest sense is not always lawful in a moral point of view. For there are many instances, in which the law of charity will not allow us to insist upon our right with the utmost rigour. A reason for which it will be necessary to guard against things, which fall not within the original purpose of an action, and the happening of which might be foreseen: unless indeed the action has a tendency to produce advantages, that will far outweigh the consequences of any accidental calamity, and the apprehensions of evil are by no means to be put in competition with the sure hopes of a successful issue. But to determine in such cases requires no ordinary penetration and discretion. But wherever there is any doubt, it is always the safer way to decide in favour of another's interest, than to follow the bent of our own inclination. "Suffer the tares to grown, says our divine teacher, least in rooting up the tares you root up the wheat also."
The general destruction, which the Almighty, in right of his supreme Majesty, has sometimes decreed and executed, is not a rule, which we can presume to follow. He has not invested men, in the exercise of power, with those transcendent sovereign rights. Yet he himself, notwithstanding the unchangeable nature of his sovereign will, was inclined to spare the most wicked cities, if ten righteous persons could be found therein. Examples like these may furnish us with rules to decide, how far the rights of war against an enemy may be exercised or relaxed.
V. It frequently occurs as a matter of inquiry, how far we are authorised to act against those, who are neither enemies, nor wish to be thought so, but who supply our enemies with certain articles. For we know that it is a point, which on former and recent occasions has been contested with the greatest animosity; some wishing to enforce with all imaginary rigour the rights of war, and others standing up for the freedom of commerce.
In the first place, a distinction must be made between the commodities themselves. For there are some, such as arms for instance, which are only of use in war; there are others again, which are of no use in war, but only administer to luxury; but there are some articles, such as money, provisions, ships and naval stores, which are of use at all times both in peace and war.
As to conveying articles of the first kind, it is evident that any one must be ranked as an enemy, who supplies an enemy with the means of prosecuting hostilities. Against the conveyance of commodities of the second kind, no just complaint can be made.—And as to articles of the third class, from their being of a doubtful kind, a distinction must be made between the times of war and peace. For if a power can not defend itself, but by intercepting the supplies sent to an enemy, necessity will justify such a step, but upon condition of making restoration, unless there be some additional reasons to the contrary. But if the conveyance of goods to an enemy tends to obstruct any belligerent power in the prosecution of a lawful right, and the person so conveying them possesses the means of knowing it; if that power, for instance, is besieging a town, or blockading a port, in expectation of a speedy surrender and a peace, the person, who furnished the enemy with supplies, and the means of prolonged resistance, will be guilty of an aggression and injury towards that power. He will incur the same guilt, as a person would do by assisting a debtor to escape from prison, and thereby to defraud his creditor. His goods may be taken by way of indemnity, and in discharge of the debt. If the person has not yet committed the injury, but only intended to do so, the aggrieved power will have a right to detain his goods, in order to compel him to give future security, either by putting into his hands hostages, or pledges; or indeed in any other way. But if there are evident proofs of injustice in an enemy's conduct the person who supports him in such a case, by furnishing him with succours, will be guilty not barely of a civil injury, but his giving assistance will amount to a crime as enormous, as it would be to rescue a criminal in the very face of the judge. And on that account the injured power may proceed against him as a criminal, and punish him by a confiscation of his goods.
These are the reasons, which induce belligerent powers to issue manifestoes, as an appeal to other states, upon the justice of their cause, and their probable hopes of ultimate success. This question has been introduced under the article, which refers to the law of nature, as history supplies us with no precedent to deduce its establishment from the voluntary law of nations.
We are informed by Polybius, in his first book, that the Carthaginians seized some of the Romans, who were carrying supplies to their enemies, though they afterwards gave them up, upon the demand of the Romans. Plutarch says that when Demetrius had invested Attica, and taken the neighbouring towns of Eleusis and Rhamnus, he ordered the master and pilot of a ship, attempting to convey provisions into Athens, to be hanged, as he designed to reduce that city by famine: this act of rigour deterred others from doing the same, and by that means he made himself master of the city.
VI. Wars, for the attainment of their objects, it cannot be denied, must employ force and terror as their most proper agents. But a doubt is sometimes entertained, whether stratagem may be lawfully used in war. The general sense of mankind seems to have approved of such a mode of warfare. For Homer commends his hero, Ulysses, no less for his ability in military stratagem, than for his wisdom. Xenophon, who was a philosopher as well as a soldier and historian, has said, that nothing can be more useful in war than a well-timed stratagem, with whom Brasidas, in Thucydides agrees, declaring it to be the method from which many great generals have derived the most brilliant reputation. And in Plutarch, Agesilaus maintains, that deceiving an enemy is both just and lawful. The authority of Polybius may be added to those already named; for he thinks, that it shews greater talent in a general to avail himself of some favourable opportunity to employ a stratagem, than to gain an open battle. This opinion of poets, historians, and philosophers is supported by that of Theologians. For Augustin has said that, in the prosecution of a just war, the justice of the cause is no way affected by the attainment of the end, whether the object be accomplished by stratagem or open force, and Chrysostom, in his beautiful little treatise on the priestly office, observes, that the highest praises are bestowed on those generals, who have practised successful stratagems. Yet there is one circumstance, upon which the decision of this question turns more than upon any opinion even of the highest authority, and that is, whether stratagem ought to be ranked as one of those evils, which are prohibited under the maxim OF NOT DOING EVIL, THAT GOOD MAY ENSUE, or to be reckoned as one of those actions, which, though evil IN THEMSELVES, may be so modified by particular occasions, as to lose their criminality in consideration of the good, to which they lead.
VII. There is one kind of stratagem, it is proper to remark, of a negative, and another of a positive kind. The word stratagem, upon the authority of Labeo, taken in a negative sense, includes such actions, as have nothing criminal in them, though calculated to deceive, where any one, for instance, uses a degree of dissimulation or concealment, in order to defend his own property or that of others. 1 So that undoubtedly there is something of harshness in the opinion of Cicero, who says there is no scene of life, that will allow either simulation, or dissimulation to be practiced. For as you are not bound to disclose to others all that you either know or intend; it follows that, on certain occasions, some acts of dissimulation, that is, of concealment may be lawful. This is a talent, which Cicero, in many parts of his writings, acknowledges that it is absolutely necessary for statesmen to possess. The history of Jeremiah, in the xxxviiith chapter of his prophecy, furnishes a remarkable instance of this kind. For when that prophet was interrogated by the king, respecting the event of the siege, he prudently, in compliance with the king's orders, concealed the real matter from the nobles, assigning a different, though not a false reason for the conference, which he had had. In the same manner, Abraham called Sarah, his sister, an appellation used familiarly at that time to denote a near relation by blood, concealing the circumstance of her being his wife.
VIII. A stratagem of a positive kind, when practised in actions, is called a feint, and when used in conversation it receives the name of a lie or falsehood. A distinction is made by some, between these two kinds of stratagems, who say, that words are signs of our ideas, but actions are not so. But there is more of truth in the opposit e opinion, that words of themselves unaccompanied by the intention of the speaker, signify nothing more than the inarticulate cries would do of any one labouring under grief, or any other passion: which sounds come under the denomination of actions, rather than of speech. But should it be said that being able to convey to others the conceptions of his mind, by words adapted to the purpose, is a peculiar gift of nature, by which man is distinguished from other parts of the animated creation, the truth of this cannot be denied.
To which we may add that such communication may be made not only by words, but by signs or gestures, like those used to the dumb; it makes no difference, whether those signs or gestures have any natural connection with the thing they are intended to signify, or whether such a connection is only assigned to them by custom. Equivalent to such signs or gestures is handwriting, which may be considered, as a dumb language, deriving its force not merely from the words used, and the particular form of the letters, but from the real intention of the writer, to be gathered from thence:—to be gathered either from the resemblance between the characters and the intentions, as in the Egyptian hieroglyphics, or from pure fancy, as among the Chinese.
Here likewise another distinction is necessary to be applied in the same manner, as was done before, in order to remove all ambiguity in using the term of THE LAW OF NATIONS. For it was there said, that the laws established by independent and separate states, whether or no those laws implied any mutual obligations, were denominated the LAW OF NATIONS. 2 So that words, gestures, and signs, made use of to convey a meaning, imply an obligation, in all the persons concerned, to receive and employ them in their common acceptation. But the employment of OTHER MEANS, coming under NONE OF THOSE DESCRIPTIONS, cannot be construed into a violation of any social contract, although some may be deceived thereby. It is the REAL NATURE of the actions that is here spoken of, and not the ACCIDENTAL circumstances attending them: such actions for instance, as occasion no mischief; or if they do so, there is no guilt, where there is no treacherous design.
We have an instance of the former kind in the conduct of our Saviour, who, on the way to Emmaus, pretended to the disciples, that he was going further; her was a harmless stratagem, unless we interpret the words, as expressive of his intention to have gone further, if he had not been prevented by their efforts and entreaties to detain him. And in another part of the sacred history it is said, that he intended to have done it, had he not been so earnestly importuned by them to go into the ship. There is another instance too in the conduct of Paul, who circumcised Timothy, though he knew the Jews would conclude from thence, that the ordinance of circumcision, which in reality had been abolished, was still binding upon the descendants of Israel, and that Paul and Timothy were of the same opinion. Whereas Paul had no such intention, but only hoped, by that means, to open for himself and Timothy a way to more familiar intercourse with the Jews. Neither could an ordinance of that kind, when the divine obligation was repealed, any longer be deemed of such importance, nor could the evil of a temporary error, resulting from thence, and afterwards to be corrected, be regarded as equivalent to the opportunity, which Paul thought to gain, of making it conducive to the introduction of Christian truth.
The Greek Fathers have given the name of ECONOMY, or MANAGEMENT to stratagems of this kind. On this subject there is an admirable sentiment in Clement of Alexandria, who, in speaking of a good man, says that "he will do many things for the benefit of his neighbour alone, which he would not otherwise have undertaken."
One of these stratagems was practised by the Romans, who, during the time that they were besieged in the Capitol, threw some loaves of bread into the enemy's camp, that it might not be supposed they were pressed by famine. The feigned flight, which Joshua ordered his people to make, to assist him in his designs upon Ai, affords an instance of a stratagem of the second kind; the ensuing mischiefs of which may be considered, as some of the effects of lawful war. The ORIGINAL DESIGN of that pretended flight does not at all affect the question. The enemy took it for a proof of fear; and he was at liberty to do so, without debarring the other of his right to march this way, or that, with an accelerated or retarded motion, with a shew of courage, or an appearance of fear, as he might judge it most expedient.
History furnishes us with innumerable examples of deceptions practiced with success upon an enemy, by assuming his arms, ensigns, colours, or uniforms; all which may be justified upon the same principle. For all these are actions, which any one may avail himself of at his pleasure, by departing from the usual course of his military system. For such points of discipline and system depend upon the will and fancy of the military commanders in each state, rather than upon any invariable custom, equally binding upon all nations.
IX. Those signs, by which the daily intercourse of life is maintained, from a subject of more weighty discussion, with which the consideration of lies or falsehood is necessarily interwoven.
All stratagems of this kind are so direct a violation of all moral principle, both in their nature and consequences, that almost every page of the revealed will of God declares their condemnation. Solomon describes a righteous, that is, a good man, as one, who holds every false word in detestation, deprecating the least appearance of deception: and the Apostle's injunction accords with these sentiments, instructing his disciples not to lie to one another.
Nor is it in the high standard of perfection alone, which the divine records present, that such a recommendation of fair, open, and sincere dealing is to be found. It is the theme of praise with poets and philosophers, and the angry hero of the Grecian poet declares, that he detests the man, as an infernal being, who utters one thing with his tongue, while he conceals another in his heart. But making some allowance for poetic fiction—we find even the grave, sober, and discerning, Stagirite describing falsehood, as a vile, and abominable refuge, and painting truth as a lovely object, that must extort the warmest praise.
These are all great and high authorities in favour of open dealing. Yet there are names of no less weight, both among sacred and profane writers, whose opinions are a vindication of stratagems, when used upon PROPER occasions. One writer speaks of a case, where stratagem may be used, even for the benefit of the person, on whom it is practised, and adduces the instances of a physician, who, by means of a deception, overcame the perverseness of a patient, and wrought a salutary cure.
X. To reconcile such a variety of discordant opinions, it may be necessary to devise some way of examining falsehood both in its more extensive, and more confined acceptation. Nor is speaking an untruth, UNAWARES, to be considered in the nature of a lie, but the falsehood, which comes within the limits here defined, is the KNOWN and DELIBERATE UTTERANCE of any thing contrary to our real conviction, intention, and understanding.
Words, or signs, importing the same meaning as words, are generally taken for conceptions of the mind, yet it is no lie for any man to utter a falsehood, which he believes to be true; but the propogation of a truth, which any one believes to be false, IN HIM amounts to a lie. There must be in the use of the words therefore an INTENTION to deceive, in order to constitute a falsehood in the proper and common acceptation. Consequently, when any one single word, or the whole tenour of a discourse, admits of more significations than one, either by the use of some popular phrase, some term of art, or intelligible figure of speech, in that case if the speaker's intention correspond with any one of those meanings, he cannot be charged with using falsehood, although it is possible that a hearer may take his words in a very different sense. It is true that using such an ambiguous method of speaking on ALL OCCASIONS is not to be approved of, though there are particular circumstances under which it may be reconciled with honour and justice. In communicating knowledge, for instance, there is no harm in using a metaphor, an irony, or an hyperbole, figures of speech, tending either to adorn or to elucidate a subject. There are cases too, where by this doubtful mode of expression it may be proper to avoid an urgent and impertinent question. There is an instance of the former kind in our Saviour's saying, that "our friend Lazarus sleepeth," where the disciples understood him, as if he were speaking of the refreshing rest of an ordinary sleep: and when he spoke of restoring the temple, which he meant his own body, he knew that the Jews applied what he said to the MATERIAL EDIFICE of the Temple. In the same manner he frequently addressed the multitudes in parables, which they could not understand by barely hearing, without that docility of mind, and attention, which the subject required. Profane history too furnishes us with an example of the second kind, in the conduct of Vitellius, who, as Tacitus informs us, gave Narcissus doubtful and ambiguous answers, in order to avoid his urgent questions; as any explicit declaration might have been attended with danger.
On the other hand, it may happen to be not only censurable, but even wicked to use such a manner of speaking, where either the honour of God or the welfare of mankind is concerned, or indeed any matter, which demands explicit avowals, and open dealing. Thus in contracts every thing necessary to their fulfillment ought to be fully disclosed to those concerned. There is an apposite expression of Cicero, who says, that every degree of deception ought to be banished from all contracts, and there is in the old Athenian Laws a proverb, conformable to this, which says, there must be nothing, but open dealing in markets.
XI. In strictness of speech such ambiguity is excluded from the notion of a lie. The common notion of a lie therefore is something spoken, written, marked, or intimated, which cannot be understood, but in a sense different from the real meaning of the speaker. But a lie, in this stricter acceptation, having some thing unlawful in its very nature, necessarily requires that a distinction should be made between it and that latitude of expression already explained. And if this acceptation be properly considered, at least according to the opinion prevailing in all nations, it seems, that no other explanation of it is necessary to be given, except that it is a violation of the existing and permanent rights of the person, to whom a discourse, or particular signs, are directed. It is a violation of the rights of ANOTHER; for it is evident, that no one can utter a falsehood with a view to impose upon himself. The rights here spoken of are peculiarly connected with this subject. They imply that liberty of judgment, which men are understood, by a kind of tacit agreement, to owe to each other in their mutual intercourse. For this, and this alone is that mutual obligation, which men intended to introduce, as soon as they began to use speech, or other signs of equal import. For without such an obligation the invention of those signs would have been perfectly nugatory. It is requisite too, that at the time a discourse is made, such a right or obligation should remain in full force.
A right may indeed have existed and afterwards have become obsolete, owing to the rise or occurrence of some new right: which is the case with a debt, that may be released by acquittance, or nonperformance of a condition. It is farther requisite, to constitute a VIOLATION OF THIS RIGHT, that the ensuing injury should immediately affect the PERSON ADDRESSED: as in contracts, there can be no injustice, but what affects one of the parties, or persons concerned.
And perhaps under the head of this right, it may not be improper to assign a place to that TRUE SPEAKING, which Plato, following Simonides, classes with justice, in order to from a more striking contrast with that falsehood, so often prohibited in Scripture, by the name of false witness to, or against, our neighbour, and which Augustin, in defining a lie, calls an intention to deceive. Cicero also in his offices lays down truth, as the basis of justice.
The right to a discovery of the whole truth may be relinquished by the express consent of the persons, who are engaged in a treaty: the one may declare his intention not to disclose certain points, and the other may allow of this reserve. There may be also a tacit presumption, that there are just reasons for such reserve which may perhaps be necessary out of regard to the rights of a third person: rights which, in the common judgment of all sober men, may be sufficient to counterbalance any obligation in either of the persons engaged in the treaty to make a full disclosure of his views and sentiments.—These principles, duly considered, will supply many inferences to reconcile any seeming contradiction in the opinions, that have been advanced.
XII. In the first place, many things may be said to madmen, or children, the LITERAL MEANING of which may not be true, without incurring the guilt of wilful falsehood. A practice which seems to be allowed by the common sense of all mankind. Quintilian, speaking of the age of puerility, says, it is a period of life, when many useful truths may be taught in the dress of fiction.—Another reason given is, that as children and madmen possess no perfect power of judging, impositions of that kind can do no injury to their rights, in such respects.
XIII. Secondly, when a conversation is addressed to any one, who is not thereby deceived, although a third person, not immediately addressed, may misconceive the matter, there is no wilful falsehood in the case. No WILFUL FALSEHOOD towards the person addressed: because he feels no greater injury from thence, than an intelligent hearer would do from the recital of a fable, or the use of a metaphor, irony, or hyperbole in speech. It cannot be said that an injury is done to the person, who accidentally and cursorily hears a matter, and misconceives it: for being no way concerned, there is no obligation due to him. As he misconceives a thing addressed to ANOTHER, and not to HIMSELF, he must take upon his own head all the consequences of the mistake. For, properly speaking, the discourse, WITH RESPECT TO HIM, is no discourse, but an inexpressive sound that may signify one thing as well as another. So that there was nothing wrong in the conduct of Cato the Censor, who made a false promise of assistance to his confederates, nor in that of Flaccus, who informed others that Ameilius had taken the enemy's city by storm, although the enemy were deceived by it. Plutarch mentions an instance of the same kind in the life of Agesilaus. Here no communication was made to the enemy, and the prejudice he sustained was an accidental thing no way unlawful in itself, either to be wished for or procured.
XIV. In the third place, whenever it is certain that the person, on whom a deception is practised, discovers that the intent of it was to do him a service; he will not feel it as a grievance, nor can it come under the strict denomination of a lie or falsehood. It will be no more an INJURY, than it would be a THEFT in any one, presuming upon an owner's consent, to take something belonging to that owner, in order to convert it to his use in a very beneficial way. For in cases of notorious certainty, a PRESUMPTION may be taken for express consent. But it is evident that no man would CONSENT to receive an INJURY.
From hence it appears, that a person is guilty of no treachery, who uses unfounded or fictitious motives to console a friend in distress, as Arria did to Paetus upon the death of his son, of which there is an account in Pliny's Epistles, or in a general, who in a perilous situation should avail himself of false intelligence, to encourage his troops, by which perhaps a victory might be gained.
It may be observed likewise, that the injury done to the freedom of judgment is, in such a case, of less consequence, because it is but momentary, and the real fact is soon discovered.
XV. There is a fourth case, which bears a near affinity to those above mentioned, and that is, when any one, possessing preeminent authority, orders another, in a subordinate capacity, to execute some device or stratagem, conducive either to his individual, or to the public welfare. Which Plato seems to have had particularly in view, in allowing those in authority to avail themselves of pretexts, or stratagems. The same writer is very correct in his notion of not making such a device a characteristic of that authority, which belongs to the supreme being. For all such devices, however justifiable they may be in CERTAIN CASES, strongly betray that imperfection, which is inseparable from all human systems.
The stratagem, which Joseph employed to obtain further discoveries without making himself known to his brethren, is much commended by Philo, as a mark of great policy, when, contrary to the convictions and feelings of his own mind, he accused them of being spies, and afterwards charged them with theft. It was by a stratagem of the same kind, that Solomon gave proof of his inspired wisdom, when he used the FICTITIOUS threat of dividing the living child in order to discover the real mother.
XVI. The fifth case, which allows a stratagem to be practised, is that, where it may be the ONLY means of saving the life of an innocent person, of obtaining some object of equal importance, or of diverting another from the perpetration of some horrid design. The heathen poet has given a beautiful illustration of this in his praises of Hypermnestra, whose conduct he calls "a splendid stratagem, ennobling the virgin to all posterity."
XVII. It is evident that many writers of acknowledged wisdom, and sober judgment, have carried the point farther than has been done in this treatise, in allowing the use of false representations to an enemy. In cases, where public enemies are concerned, they maintain, that it is lawful to deviate from those strict rules of avowing and disclosing all our intentions, which they prescribe, on all other occasions. Such is the opinion of Plato and Xenophon among the Greeks, of Philo among the Jews, and Chrysostom among Christians. It may not perhaps be amiss to cite, in this place, the message sent by the men of Jabesh Gilead to the Ammonites, by whom they were besieged, and also that of the prophet Elisha, and at the same time to mention the conduct of Valerius Laevinus, who boasted of having killed Pyrrhus.
The third, the fourth and fifth observations above made, may be illustrated from what is said by Eustratus, Archbishop of Nice, "An able and upright counsellor is not obliged to disclose the whole truth: for there may be occasions, when it may be necessary for him to recommend the means of deceiving an enemy, or to employ some stratagem towards a friend, where it may turn to his advantage."
XVIII. What has been said of false speaking must be understood as applied to affirmative declarations, which can be prejudicial to no persons, but public enemies: it can by no means be taken to include promises. For promises confer upon the person, to whom they are made, a peculiar right to claim their full performance. And this is a rule, which must take place, even between public enemies: a rule to which existing hostilities are not allowed to from an exception. It is a maxim proper to be enforced in TACIT, as well as in EXPRESS agreements: as when a parley or conference is demanded, there is always an IMPLIED promise, that both sides shall attend it with perfect safety. But these are points reserved for the discussion of another part of this treatise.
XIX. It will be necessary to repeat an observation made before, with respect to oaths, both of the affirmative and promissory kind, where it was maintained that they exclude all exceptions, all mental reservations towards the person, to whom they are made, being regarded not merely as a solemn transaction with that individual, but as a stedfast appeal to God. Such an appeal to the supreme being demands the performance of an oath, even if it gave the individual no right to the same.
At the same time it was observed, that a sworn declaration is not like one of any other kind, where an application of terms different from their usual meaning may supply the speaker with an excuse for evading their import. But truth requires every declaration and promise to be made in terms, which it is supposed that every man of integrity and clear judgement will understand, spurning at the impious thought, that men may be deceived by oaths, as children are by toys and trifles.
XX. Some nations and individuals indeed have rejected the use of those stratagems, which even the law of nature allows to be employed as a means of self-defence against an enemy. But they did so, not from any opinion of their unlawfulness, but from a noble loftiness of mind, and from a confidence in their own strength. Aelian has preserved a saying of Pythagoras, "that there are two things, in which man approaches nearest to God, in always speaking the truth, and doing good to others." Aristotle, somewhere in his Ethics, calls speaking truth, the freedom of a great soul, and Plutarch says, that falsehood is the qualification of a slave. But an adherence to truth, in simplicity of heart, is not the only duty required of Christians, in this respect, they are commanded to abstain from all vain discourse, as having for their example him, in whose mouth there was found no guile.
XXI. With respect to the actions of men, there is another rule which may properly come under this head, and that is, the unlawfulness of urging or persuading any one to do an unlawful act. For instance, no subject has a right to lift his hand against his sovereign, to deliver up a town to without public authority, or to despoil his neighbour of his goods. It would be unlawful then to encourage the subject of an enemy, as long as he continues his subject, to do any of these acts. For the person, who urges another to do a wicked act, makes himself a partner in his guilt. Nor can it be received as a just answer, that urging a subject to the perpetration of such a deed is nothing more than employing the lawful means of destroying an enemy. For though it may be necessary and just to destroy him, if possible, yet that is not the way, in which it should be done. Augustin has well observed, that it makes no difference whether any one should commit a crime himself, or employ another as his instrument.
But employing the spontaneous offers of a deserter is not contrary to the laws of war, and is a very different action from that of seducing a subject from his allegiance.
1. Thus when a ship makes an appearance of mounting more guns than she really carries, in order to deter an enemy from attacking her, this may be considered as one of those negative stratagems, or stratagems of dissimulation, to which our author alludes.
2. Besides the NECESSARY law of nations, which is EQUALLY, and at ALL TIMES binding upon ALL states, there is a POSITIVE law of nations,—consisting of THE VOLUNTARY, THE CONVENTIONAL and THE CUSTOMARY law. All of which "proceed from the will of nations,—the VOLUNTARY from their presumed consent, the CONVENTIONAL from an express consent, and the CUSTOMARY from tacit consent: and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of POSITIVE LAW OF NATIONS."—Vattel, Prelim. Sect. 27.
No one but an heir bound by the act of another—Property of subjects answerable for the debts of sovereigns, according to the law of Nations—Capture of persons and property after satisfaction refused by the aggressor—Reprisals—Personal safety of subjects—Distinction made by the law of Nations in this respect.
I. THE rights accruing from the law of Nations are the points next to be considered, which may be referred either to wars in GENERAL, or to those of a PARTICULAR description.
Wars in GENERAL are those, which properly first come under notice.
By the LITERAL law of nature, no one is bound by the actions of another, except the person, who succeeds to his property. For the introduction and establishment of property introduced and established also the power of transferring it with all its incumbrances. The Emperor Zeno however pronounces it repugnant to natural justice for one man to be molested for the debts of another. A principle, which gave rise to the distinctions in the Roman law, that the wife could not be sued for her husband, nor the husband for his wife, nor a son for his father, nor a father or mother for their son. Nor, as Ulpian clearly states it, could individuals be answerable for the debts of the community, and more especially if that community be possessed of property. Indeed if that were not the case individuals could only be obliged to contribute their due proportion, as members of that community.
Seneca says, "if any one lends money to my country, I am not to be considered as his debtor, nor to take the debt upon myself, though I am bound to pay my due proportion of it."There was a special provision made in the Roman law, that one peasant should not be bound for the debts of another, and it is laid down as a rule, that the goods of one person shall not be distrained for the debts of another, even if they be public debts; and in Justinian's Novels, pledges for others are forbidden, and the cause assigned for it is, because it is unreasonable that one person should incur the debt, and another be bound to the payment of it an exaction to which the name of ODIOUS is given. King Theodoric Cassiodor, calls it a shocking licence for one man to be detained as a pledge for another.
II. Although in the preceding observations there may be a great deal of truth, yet it is possible, and indeed appears actually to be the case, that the voluntary law of nations introduced the practice of rendering all the corporeal, and incorporeal property, belonging to the subjects of any state or sovereign, liable to the debts, which that state or sovereign may have incurred, either personally, or by refusing to make such reparation, as may be due for the injuries and aggressions, which they have committed.
Yet this is a practice, which nothing but necessity could justify; for, on any other ground, it would be opening a door to innumerable acts of wanton aggression and injustice against individuals. As the property of states and sovereigns cannot often so easily fall into an enemy's hand, as that belonging to individuals, who are more numerous, and whose property is consequently more exposed. So that rights of this kind are to be reckoned among those, which Justinian says, are the offspring of stern necessity, the calamities of men driving them to the use of such means.
But though a practice like this owes its introduction to NECESSITY, it is not so far at variance with the law of nature, as to exclude CUSTOM and TACIT agreement from having some share in its establishment. For we find that sureties are bound by no other tie, but that alone of having given their consent. Besides, it might easily be supposed, that it was the best method of redress against the subjects of another state, where the aggrieved persons could not so easily prosecute their rights, or obtain indemnities, the claims or injuries of strangers being but little understood, and perhaps still less regarded in a foreign land.
Subjects, being thus liable to the loss of their property, by the conduct of their fellow subjects, or by that of the state, might sometimes feel it a hardship, while on other occasions, it would prove their greatest security against aggressions from the subjects of another power.
That this was a received custom appears not only from the regular wars, carried on by one state against another, the rules observed in which are often named in the manifestoes issued on such occasions: the form of which may be seen in the first book of Livy, where it is said, "I declare war against the ancient nations of the Latins, and likewise against the respective individuals" and the same writer, in his thirty first book, informs us, that, upon the question being put to the people, they were asked, whether it was their pleasure that war should be declared against Philip, and against the Macedonians, his subjects.—But the same custom also prevailed, even before the commencement of actual and open hostilities between two states, when mutual acts of aggression by the subjects of each power could be regarded as nothing but the eve, and prelude to a declaration of war. The words used by Agesilaus to Pharnabazus will serve to elucidate this point: he said; "While we were friends to the king of Persia, we treated him and his subjects in a friendly manner: Now we are enemies, you can expect nothing from us but hostilities. Therefore, Pharnabazus, while you chuse to continue a vassal to the King, we wound him through your sides."
III. The Athenians had a method somewhat like this of seeking redress, which they called 
a seizure of men's persons, which was laid down in the Attic law in the following terms, "if any one has been murdered in a foreign country, the nearest relatives of the deceased are authorized to seize any three subjects of that country, but not more than three, till the perpetrators of the deed be punished, or at least delivered up to the hands of justice for that purpose."
In this case we find that the personal liberty of subjects, which may be considered as a kind of incorporeal right, including the right of residing where they please, or doing whatever they may think proper, is made answerable for the debt of the state, who is bound to punish the criminal acts of her subjects: so that the subjects suffers constraint, till the state has discharged the debt, which it is bound to pay; and by the payment of this debt is meant the punishment of the guilty. For although the Egyptians, as we learn from Diodorus Siculus, maintained that neither the person, nor liberty of any one ought to be bound or constrained for a debt, there is nothing in it repugnant to the law of nature, and by the practice not only of the Greeks, but of other nations, the opposite opinion seems to have been established.
Aristocrates, who was contemporary with Demosthenes had made a motion for a decree, that if any one killed Charidemus, it might be lawful to seize him, wherever he was to be found, and that any one, who attempted to rescue that person, should be deemed an enemy. Demosthenes finds fault with many parts of this decree. For in the first place, Aristocrates had omitted making a proper distinction between murder and a lawful putting to death, the latter of which is an act of justice, in the next place, he has said nothing of bringing the person to a regular trial: besides, it was not the persons, among whom the murder had been committed, but those who afterwards received the murderer, that were to be declared enemies. Demosthenes says, that "the regular law prescribes, that if the persons in whose district a murder has been committed, neither punish, nor deliver up the perpetrator of the crime, three of their people shall be liable to be seized. But this decree, allowing the persons in whose district it has been committed to escape with impunity, not even naming THEM, passes sentence upon those, who in conformity to the common laws of humanity have received the fugitive, if they do not deliver him up, which would be a breach of the protection due to a suppliant."
The fourth point, in which he blames Aristocrates, is for having carried matters to the extremities of open and actual war, in a case, where the law only authorized the seizure and detention of particular persons. Of these arguments, the first, the second, and the fourth, are by no means destitute of weight. But the third argument, unless it be confined entirely to the circumstance of accidental death, or that necessarily occasioned by defending one's self, may be regarded more as an oratorical flourish than a just and solid reason. For the law of nations extends the privileges, and character of suppliants to those only, who have left their country on account of misfortune, and not owing to crimes. Indeed if the law of nations made no such distinction, the persons, among whom a crime has been committed, and who may be suspected of having countenanced the deed, and those who barely refuse to punish or deliver up the guilty fugitive, would be upon an equal footing as to right. So that it was either USAGE, which GRADUALLY introduced the above interpretation of that law, to which Demosthenes appeals, or it was afterwards more EXPRESSLY ESTABLISHED, in order to avoid such cavils. For no one can deny the truth of one of these positions who has attended to the observation of Julius Pollux, that "the seizure and detainder of persons can be enforced, whenever a power cannot obtain the surrender of fugitive, murderers, which they demand. In this case the aggrieved power or individual may seize and detain any three of the people belonging to the state, which refuses to make that surrender."
It is upon the same principle that any power may detain the subjects of another state, in order to procure the release of any subjects of her own, unjustly seized, and imprisoned by that state.
IV. Another method of obtaining redress for any violation of persons, or property is by having recourse to what, in modern language, are called REPRISALS, which the Saxons and Angles denominated WITHERNAM, and to which the French gave the name of LETTERS OF MARQUE, and those were usually obtained from the crown.
V. It is generally understood that recourse may be had to this method of redress not only against a foreign aggressor, but also against a debtor, if justice cannot be obtained in due time: but in NOTORIOUS cases, which admit of no doubt, this right may be enforced even beyond the strict letter of the law. For even in DOUBTFUL matters, the presumption will always be in favour of judges appointed by public authority. For it is unlikely that they should GREATLY, or WANTONLY exceed their power; especially when, if so inclined, they have not the same means of enforcing their decrees against foreigners, as against their fellow subjects. Indeed even in disputes between subjects of the same country, they cannot annul a just debt. Paulus, the Lawyer, says that a REAL DEBTOR, though discharged, owing to some informality or inability of the law to enforce payment, still remains a debtor according to the law of nature.
And when, in consequence of a judicial sentence, a creditor, under pretext of seizing his own property, had taken from a debtor something which did not belong to him thought it was in his possession: upon the discharge of the debt, a doubt arising whether the thing should be restored to the debtor, Scaevola maintained that it certainly ought to be restored.
There is a difference between the two cases. For subjects, AS SUCH, cannot make any violent resistance to the execution of a sentence, which they may not deem satisfactory, nor can they prosecute any right in opposition to the law. FOREIGNERS may use violent means to enforce a right: tho' they are not justified in using such means, while there is any possibility of obtaining redress in a legal, and peaceable manner.
It is on such grounds that reprisals are made upon the persons and property of the subjects, belonging to a power, who refuses to grant redress and reparation for injuries and aggressions. It is a practice not literally enacted by the law of nature, but generally received through custom. It is a practice too of the greatest antiquity: for in the eleventh book of the Iliad, we find Nestor giving an account of the reprisals, which he had made upon the Epeian nation, from whom he took a great number of cattle, as a satisfaction for a prize which his father Neleus had won at the Elian games; and for debts due to many private subjects of the Pylian kingdom. Out of this booty the king having selected his own due, equitably divided the rest among the other creditors.
VI. It has been a received opinion with many nations, that reprisals might be made even upon the LIVES of innocent subjects, owing to the right, which it was supposed that every one had over his own life, and which might be transferred from the individual to the state. A doctrine, which, as it was proved in the first book of this treaties, can never be reconciled either to sound religion or morality. Indeed a person may ACCIDENTALLY, though not INTENTIONALLY be killed by us in attempting to prevent him from violently obstructing us in the prosecution of a lawful right. Yet if such an accidental calamity could be foreseen, the law of charity, setting so pre-eminent a value upon the life of man, would in such a case prescribe the forbearance of our right.
VII. But on this, as well as other points, we must take care not to confound the natural and fundamental law of nations, with the civil and conventional law of particular states.
By the law of nations all the permanent subjects, both natives and settlers, of an offending state or sovereign are liable to suffer reprisals: but the same rule does not bind those, who are passing through a country, or only residing in it for a time. For such reprisals are a kind of pledges, like public burdens, made answerable for the public debts, from which foreigners, being temporary residents, though owing obedience to the laws, are totally exempt.
In the same manner, Ambassadors, but not those sent from an enemy to our enemies, and their property, are exempt from such conditions by the law of nations. By the CIVIL LAW too of many countries an exception is made in favour of women and children, of men of letters, and those who are traveling for the purposes of trade. But by the law of NATIONS the goods of all are liable to reprisals, as was the case at Athens, respecting the seizure of persons. In many places, by the civil law, the right of making reprisals is obtained of the sovereign, and in others, of the judges.
By the law of nations the property of all captures is devoted to discharge the debt, and defray the expenses incurred, the remainder of which, after due satisfaction obtained, and peace concluded, should be restored. By the civil law the persons interested are summoned to appear, the property is sold by public authority, and the money, accruing from thence, divided among all who are entitled to a share of the same. But these and other points of the same kind are to be learned from civilians, who are conversant in such matters, and particularly from Bartolous, who has written upon reprisals. This subject may be closed with one observation is, that will in some measure tend to soften the rigour of this stern, but necessary right, and that observation is, that such as by not discharging a debt, or granting redress, have occasioned reprisals to be made, are bound, in justice and honour, to make good the losses of those, who have thereby suffered.
Solemn war, according to the Law of Nations between different states—A people, though engaged in unjust war, to be distinguished from pirates and robbers—Change in the condition of belligerents—Formal war can be made by the Sovereign power alone—Declaration of war—The Law of Nature, Law of Nations, respecting the same—Declaration, conditional, absolute—Forms of declaration introduced by the civil law—War declared against a Sovereign includes his subjects, and allies—The reason why allies are included—Declarations, why necessary to establish certain effects—Whether actual warfare immediately follows a declaration, considered—Whether the violation of an Ambassador's rights to be a just ground of war.
I. IN THE first book of this treatise it was observed,that according to the best writers, a war is defined to be just, not on account of the CAUSES solely, in which it originates, nor on account of the MAGNITUDE of its objects, but from certain, peculiar, effects of right, with which it is attended.
But to what kind of war such an appellation most duly belongs will be best understood by considering the definition, which the Roman Lawyers have given of a PUBLIC or NATIONAL enemy. "Those says Pomponius, are PUBLIC and LAWFUL ENEMIES, with whose STATE our own is engaged in war: but enemies of every other description, come under the denomination of pirates and robbers. With that opinion Ulpian entirely accords, making an additional observation, that "if any one be taken by robbers, as he is not a lawful prisoner of war, he cannot claim of his own state the right of postliminium. But if he be taken prisoner by a public enemy of the state, being considered as a prisoner ofwar, he is entitled by the right of postliminium to be restored to his former condition."
These opinions are supported by that of Paulus, who maintains, that persons captured by pirates still continue free, that is, are not to be considered as prisoners, for whom an exchange may be demanded. So that by the opinion of the Roman Lawyers it is evident, that no war is considered to be lawful, regular, and formal, except that which is begun and carried on by the sovereign power of each country. Cicero, in his fourth Philippic, describes "a public and authorised enemy to be the person, who possesses the civil and military powers of the state, who can command the treasury, and the services of the people in support of his measures, and who, as occasions offer, has power to conclude treaties of peace and amity."
II. A state, though it may commit some act aggression, or injustice, does not thereby lose its political capacity, nor can a band of pirates or robbers ever become a state, although they may preserve among themselves that degree of subordination, which is absolutely necessary to the subsistence of all society. For with the latter, the commission of crime is the SOLE bond of union, whereas the former, though not always free from blame, but occasionally deviating from the laws of nature, which in many cases have been in a great measure obliterated, still regulate their conduct by the treaties, which they have made, and certain customs that have been established, being united among themselves for the mutual support of lawful rights, and connected with foreign states by known rules of standing polity.
The Scholiast, upon Thucydides, remarks that the Greeks, at the time when piracy was reckoned lawful, forebore committing massacres, or nightly depredations, and carrying off the oxen that were necessary for the plough. We are informed by Strabo, that other nations too, who lived by plunder, after they had returned home from their predatory voyages, sent messages to the owners, whom they had plundered, to known if they would redeem the captures at a fair price.
In morals, the whole system often derives its name from some one of the principal parts, as Cicero remarks, in the fifth book of his BOUNDS of GOOD and EVIL, and Galen observes that a mixture is often called by the name of its chief ingredient. So that Cicero is not altogether correct in saying, that a state is not merely diseased, but entirely destroyed, by the injustice of its component and leading members. For a morbid body is still a body, and a state, though dreadfully diseased, is still a political being, as long as its laws and tribunals and other necessary parts of its constitution remain, to administer justice and give redress to foreigners, no less than to private subjects in their actions against each other.
There is a beautiful observation in Dion Chrysostom, who compares the law of a state, particularly that branch of it relating to the law of nations, to the body animated by the soul, upon the departure of which the corporeal frame becomes a mass of lifeless clay: in the same manner political society cannot subsist without the guiding and controuling principle of law. Aristides, encouraging the Rhodians to harmony, observes, that even under a tyrannical government many good laws may be found.
These are points, which may be cleared up by examples. Thus Ulpian maintains that those who are captured by pirates cannot be considered as prisoners of war: but if captured by the Germans, for instance, or any national enemy, they lose their liberty for a time. But the Germans, as we are informed by Caesar, thought acts of plunder, if committed in a foreign territory, no disgrace. Tacitus says that the Cattians, a noble race of people in Germany, and the Garamantians were addicted to the same habits of plunder, yet still retained their rank among states.—Such is the difference between a national and political body, and a band of men uniting together SOLELY FOR THE COMMISSION OF CRIMES.
III. A change may occur not only in the situations of individuals, as in those of Jephthah, Arsaces, and Viriatus, who from being leaders of voluntary bands, became lawful commanders; but the same has also happened with respect to whole communities, which being originally composed of nothing but freebooters have, by the gradual course and changes of time, risen to the rank and dignity of states.
IV. What has been said with respect to the right of making formal and lawful war, being vested in the sovereign power alone, includes those who have any share in the sovereign power, as the different communities forming the States General of many commonwealths. The same rule will hold good of those, who are not SUBJECTS of a superior state, but joined to it in confederacy by an unequal treaty: innumerable instances of which are to be found in history. This was the case between the Romans and their allies, the Volscians, the Latins, and the Spaniards: and all whom we read of being engaged in wars, which were considered as lawful and just.
V. But to make a war just, according to this meaning, it must not only be carried on by the sovereign authority on both sides, but it must also be duly and formally declared, and declared in such a manner, as to be known to each of the belligerent powers. Cicero, in the first book of his offices, points out "the equity of the rules prescribed by the Roman Law for the declaration of war, from whence it may be concluded that no war is regular or just, but such as is undertaken to compel restitution, and to procure indemnity for injuries, and that too accompanied with a formal declaration." Livy also in the same manner deems an observance of these rules requisite to form the characteristic of a just war. And describing an incursion of the Acarnanians into Attica, and their ravaging the country, he says that "those acts of irritation ended in a declaration of JUST and REGULAR war on both sides."
VI. In order to understand all these points clearly respecting the declaration of war, an accurate distinction must be made between the principles, which are founded on the law of nature itself, and those, which, though not derived immediately from that source, are still found to be just: it will be necessary also to examine, what is required by the law of nations towards obtaining, IN WAR, all the consequences, privileges and effects of that law, and at the same time, to investigate the consequences and rights arising from the peculiar laws and customs of particular nations.
To repel force, or to punish a delinquent, the law of nature requires no declaration. And, as Thucydides relates, Sthenelaidas, one of the Ephori, maintains that "where we have been injured, not by WORDS, but by ACTIONS, the matter cannot be decided by WORDS and FORMS." And Aelian, after Plato, observes that it is not the declaration of the Herald, but the voice and law of nature, which proclaim war, undertaken to repel force. Hence Dion Chrysostom, in addressing the Nicomedians, says that many wars are begun without any declaration.
Upon the same ground Livy condemns the conduct of Menippus, a general belonging to Antiochus for having killed some Roman citizens before any declaration of war had been made, or even before a sword had been drawn, or a drop of blood spilt, to shew that hostilities were intended. By this objection he proves that either a formal declaration, or some act indicative of hostilities was deemed requisite to justify actual warfare.
Neither, if we follow the law of nature, is there any more occasion for notice or declaration, where an owner intends to lay hands upon HIS OWN PROPERTY. But when ever one thing is taken in return for another, or the property of a debtor is seized for the recovery of a debt, and, especially, ifany one intends seizing the property of those, who are subjects to the debtor, a formal demand must be made, as a proof that recourse to such security is the only means left to obtaining redress and satisfaction. Such a demand is necessary because that is not a PRIMARY and ORIGINAL rights, but a SECONDARY right, SUBSTITUTED in the place of the primary and original, by the artificial rules of civil law.
In the same manner to justify an attack upon a sovereign power for the aggressions and debts of its subjects, a previous remonstrance, and a proper demand of justice must be made to that power. For it is only by refusing to punish the guilty, or to grant indemnity to the injured, that states or sovereigns can be implicated in the misconduct of their subjects.1 But ever where the law of nature does not directly prescrible that such are monstrance or demand should be made, yet the common principles of humanity and equity will recommend the2 use of any means, that may prevent recourse to the calamities of war. The commandment given by God to the Hebrews, to send a message of peace to any state or city, before they began an intended attack, was designed as a special command to that people, yet some have confounded it was not ANY kind of peace that was meant by that injunction, but only such a peace as imposed terms of SUBJECTION and TRIBUTE. We are informed by Xenophon, that when Cyrus went into the country of the Armenians, he sent messengers to the kind, to demand the tribute and number of troops, which had been stipulated by treaty.
But to obtain the peculiar rights, and consequences resulting from the law of nations, a declaration of war by one of the parties, at least, if not by both, is absolutely requisite in all cases.
VII. Those declarations are either conditional or absolute. A conditional declaration is that which is coupled with a demand of restitution or redress. Under the name of restitution, the FECIAL LAW of Rome, that is to the LAW RESPECTING DECLARATIONS OF WAR, comprehended not only the claims, which OWNERSHIP established, but the prosecution of EVERY right arising from criminal or civil causes.
Hence the declarations, were couched in terms, requiring restoration, satisfaction, or surrender. Here, by the term, surrender, the party appealed to is understood to have the option either of punishing the offender, himself, or delivering him up to the aggrieved person. This manner of demanding restitution is, according to the testimony of Pliny, called CLARIGATION, that is, a LOUD and FORMAL DEMAND. Livy gives us an example of a conditional and qualified declaration, wherein the aggrieved power denounces "a determined resolution to prosecute her rights with the utmost violence, if the agressor will not make reparation andatonement for the injury he has done." Tacitus also relates the substance of a dispatch sent to Caecina by Germanicus, wherein he declares, that "if the ringleaders of the mutinous and rebellious legions are not immediately punished, he will advance with his army, and put the whole to the sword."
An ABSOLUTE declaration of war is issued, where any power has already begun hostilities, or committed acts which call for exemplary punishment. Sometimes indeed a conditional, is followed by an absolute war, though in such a case the latter is not actually necessary, but only a confirmation of the former. This gave rise to the form, which says, "an appeal is hereby made against such a people, as unjust and refusing to grant redress." There is another form also purporting, that "the principal herald of the Roman citizens has made known to the principal herald of the ancient Latins, and to the Latin people, that redress is demanded of them by just and lawful war, on account of all the disputes which they have refused to settle, and the indemnities which they have been bound to grant, and have refused; and that this is the only means remaining to recover all that has been unjustly detained."There is also a third mode of declaration, which runs in the following tenour; "Since the ancient people of the Latins have committed aggressions against the people of Rome, the people of Rome, with the advice and consent of the senate, declare war against them, and in the name of the senate and people of Rome their purpose is thus published."
But that in case of RENEWED wars such a declaration is not absolutely necessary, appears from the circumstance of its being made in due form at the nearest garrison, and not PERSONALLY to the offender himself, according to the answer given by the heralds, when they were consulted in the case of Philip of Macedon, and afterwards respecting Antiochus. Whereas a declaration for the FIRST time should be made to the enemy himself. Indeed in the war against Pyrrhus the declaration was made to one of his soldiers, in the Flaminian Circus, where, as Servius observes in his notes on the sixth book of the Aeneid, he was commanded to purchase a piece of ground, as a handle for dispute. A proof also that IN SOME CASES a declaration is superfluous may be taken from the circumstance that war is frequently declared by BOTH SIDES, which was done by the Corcyraeans and Corinthians in the Peloponnesian war, though a declaration by one of the parties would have been sufficient.
VII. As to the use of the caduceum, or staff with the figure of two snakes twisted around it, which ambassadors carried, when they sued for peace, it was a ceremony peculiar to the GREEKS, and not derived from the GENERAL law of nations. The ROMANS in the same manner had particular customs, such as using vervain in forming alliances, throwing abloody spear, as a declaration of war, renouncing all former friendship and alliance at the expiration of thirty days, after satisfaction had been demanded and refused, and again throwing another spear. None of these PECULIAR customs ought to be confounded with the GENERAL law of nations. For Arnobius informs us, that in his time many of them had fallen into disuse, and even in the time of Varro some of them were omitted. The third Punic war indeed was not declared till the moment of its actual commencement.
IX. A declaration of war, made against a sovereign, includes not only his own subjects, but all who are likely to become his associates, as thereby they make themselves accessories in the war. And this is what the modern lawyers mean, when they say that, in bidding defiance to a Prince, we bid defiance to all his associates. For they give the name of defiance to a declaration of war. By which is understood the war carried on with the power against whom it has been declared. Thus upon war being declared against Antiochus, there was no occasion for a separate declaration against the Aetolians, who had openly joined Antiochus. For, as the heralds in their answer justly observed, the Aetolians had, by that act voluntarily brought war upon themselves.
X. But if after the conclusion of such a war it should be deemed expedient to attack any other nation or king for having furnished supplies and assistance towards that war, a new declaration of war will be necessary. For that nation or king is then to be considered, not as an accessory, but as a principal enemy. And therefore it was with reason said, that the war of Manlius against the Galatians, and that of Caesar against Ariovistus, were not just wars according to the law of nations. For war was made upon them not as accessories, but as principals. So that for this purpose, as the law of nations would have required a declaration, in the same manner the Roman law would have required a new order of the Senate.
For on the motion being made for the war with Antiochus, the question was also put, whether it should not at the same time be made with his adherents. The same rule also being observed against King Perseus, it must be understood, as including the adherents during all the time that war with those princes continued; and implicating all who in reality gave them support.
XI. The reason why a declaration is necessary to constitute what is deemed, according to the law of nations, a just war, is not that which some writers assign. For they allege that it is to prevent every appearance of clandestine and treacherous dealing: an openness, which may be dignified with the name of magnanimity, rather than entitled a matter of right. On this point, we are informed that some nations have gone so far, as to settle and make known the very time and place of a general engagement.
But waving all conjecture, a more satisfactory reason may be found in the necessity that it should be known for CERTAIN, that a war is not the PRIVATE undertaking of bold ADVENTURERS, but made and sanctioned by the PUBLIC and SOVEREIGN authority on both sides; so that it is attended with the effects of binding all the subjects of the respective states;—and it is accompanied also with other consequences and rights, which do not belong to wars against pirates, and to civil wars.
XII. There is much truth indeed in the observations, which some have made, and which they have produced examples to confirm, that even in wars of this kind all captures become the lawful prize of the captors.
Yet this is only partially true, and that too, according to the law of nature, and not according to the voluntary law of nations. For the latter only makes provision to secure the rights of nations, as WHOLE communities, and not of those, who, as in civil wars, form but ONE PART of a nation.
The same writers are mistaken too in the supposition that defensive wars require no declaration. For it is no less necessary to shew by way of vindication that it is a defensive war, and at the same time by public declaration to give it the character of a national and lawful war, in order to establish those rights and consequences, that have been already mentioned, and which will hereafter be more fully explained.
XIII.They maintain another position also, which is by no means true, and that is, that a power ought not IMMEDIATELY to follow up a declaration of war with actual hostilities, as Cyrus did to the Armenians, and the Romans to the Carthaginians. For the law of nations requires the intervention of no DEFINITE time between the declaration and the commencement of war.
There may indeed be some cases, where natural justice will render such a delay proper. Thus, for instance, where reparation for injury, or the punishment of aggressors is demanded, it is but reasonable to wait till it can be known, whether the just demand will be complied with or rejected.
XIV. In order to establish the same consequences, a declaration will be equally necessary too, where the rights of Ambassadors have been violated. Yet it will be sufficient for it to be made in the manner, in which it may be done with the greatest safety. As in many other matters, in places which afford no security, satisfaction is demanded by denunciation or summons.
1. See b. ii. ch. xxi. sect. 2. of this treatise
2. See. b. ii. ch. xxiii. sect. 7. ibid.
General explanation of the effects of formal war — Distinction between lawful and innocent impunity — Merit of the latter — Examples added to explain it — General effects of former war considered with respect to lawful impunity — The reason of their introduction — Historical testimonies — By the right all persons, found within an enemy's territory, objects of hostility — Also all going thither before the war — The subjects of an enemy liable to be seized everywhere, except protected by the laws of a neutral teritory — Case of women and children —Case of prisoners — Of those whose voluntary offer of surrender is rejected — Unconditional surrender — Retaliation — Obstinate defence — Hostages.
I. SERVIUS in his comment on the passage of Virgil, where that poet says that war "will authorise mutual acts of destruction and rapine," in tracing the fecial or herald's law to Ancus Martius, and even beyond him to a still more remote period, remarks that, "if ever the persons or property of subjects, belonging to the Roman state, were seized and carried off by any other nation, the principal Herald, or King at arms went out with the sacred ministers, who presided at the making of solemn treaties, and proceedings to the verge of the territories of the offending nation, declared with a loud voice the cause of the war, and the refusal of that nation either to restore what had been seized, or to deliver up the aggressors to justice. After this he threw a spear to indicate that war and all its consequences were from that moment begun."
The commentator had previously observed that the ancients gave the name of rapine to every act of hostility even where there was no act of plunder committed; and they likewise called every kind of restitution a satisfaction.
By this explanation we learn that whenever war is proclaimed between two states or sovereigns, it is accompanied with certain rights or consequences, which do not NECESSARILY belong to war itself. And this is perfectly conformable to the examples from the Roman Lawyers, which have been before produced.
II. But it will be proper to consider how far the lawfulness, which Virgil speaks of, extends. For the term lawful sometimes implies whatever is just and pious in all respects, although the pursuit of a different course may perhaps be more laudable: according to the expression of St. Paul, who says, "all things are lawful to me, but all things are not expedient." Ulpian is speaking of a seller, who, at the expiration of a certain period, is not answerable for the safety of goods, which a buyer has neglected to take away, says he, will yet think himself bound in EQUITY to preserve them with all imaginable care. On some occasions when it is said, that men may LAWFULLY do a thing, the expression only means that doing such act will not subject them to human and legal penalties, but it by no means indicates that the action is strictly conformable to the rule of religion and morality. Thus among the Lacedaemonians and Egyptians stealing was allowed: an indulgence that by no means took away the GUILT of theft.
Cicero in the fifth of his Tusculan questions, speaking of Cinna, beautifully and justly points out this abuse of the word, LAWFUL. "He seems to me, says he, a wretched man indeed for having done those acts, and for having been in a situation, where they might be thought lawful. It can never be lawful for any man to do wrong: but we fall into a great mistake in the use of that word: for we consider a thing to be lawful, which any one may do with impunity."This is the meaning, in which the term is generally understood, as the same orator, in addressing the judges in behalf of Rabirius Posthumus, observes, "it behoves you to consider, what is becoming your character, and not what the rigour of the law allows you to inflict. For if you consult the full extent of your authority, you may make away with any citizen you please."
In the same manner legislators, as it was proved in a former book of this treatise, are not accountable, in their legislative capacity, to any human tribunal, for the laws, which they make, yet they cannot, in a moral point of view, avail themselves of this transcendent power to enact a thing that is evidently unjust. In this sense we often meet with a distinction made between what is proper or right, and what is lawful. Thus Cicero, in his speech for Milo, makes the LAW OF NATURE the standard of what is RIGHT, and LEGAL AUTHORITY, the standard of what is lawful.
III. Thus qualified, the annoyance of an enemy, either in his person or property, is lawful. This right extends not only to the power engaged in a just war, and who in her hostilities confines herself within the practice established by the law of nature, but each side without distinction has a right to employ the same means of annoyance. So that any one taken in arms, even in another's territory, cannot be treated as a robber, male-factor, or murderer, nor can even that neutral power, in whose territory he is taken, treat him as an enemy, for being found in arms.
IV. This principle was established by nations to prevent others from interfering in their disputes, or giving the law to them respecting the rights of war. Besides, if this were not the case, neutral powers would frequently be involved in the wars of others. A reason which the people of Marseilles urged in the dispute between Caesar and Pompey. They alleged that they had neither sufficient judgment to determine on which side justice lay, nor, if they could determine, had they strength to give effect to their decisions.
A spectator indeed is but ill qualified to judge, how far, even in the most just war, self-defence, the attainment of indemnity, or the punishment of an aggressor, may be carried. These are points, which, on many, if not most, occasions must be left to the conscience and discretion of the belligerents themselves: a mode far preferable to that of appealing to the mediation, and decision of disinterested and neutral powers. Livy has given an address of the Achaeans to the senate, in which they ask, "how their availing themselves of the rights of war can ever be fairly called in question, or made a subject of discussion?"
Besides the impunity attending certain actions done in war, the acquisition of territory by the right of conquest is another topic of consideration, which will hereafter be examined.
V. The lawfulness of injuring or destroying the person of a public enemy is supported by the testimony of many of the best writers, both poets, moralists, and historians. In one of the tragedies of Euripides, there is a proverb, which says, that "to kill a public enemy, or an enemy in war is no murder." Therefore the custom of the ancient Greeks, which rendered it unlawful and impious to use the same bath, or to partake of the same festivities and sacred rites with a person who had killed another in time of peace, did not extend to any one who had killed a public enemy in war. Killing an enemy is indeed everywhere called a right of war. "The rights of war, says Marcellus in Livy, support me in all that I have done against the enemy."And the same historian gives the address of Alcon to the Saguntines, where he says, "You ought to bear these hardships, rather than suffer your own bodies to be mangled, and your wives and children to be seized and dragged away before your eyes."Cicero in his speech in defence of Marcellus passes a high encomium upon the clemency of Caesar, who, "by the laws of war and the rights of victory, might have put to death all, whom he had spared and protected." And Caesar observes to the Eduans, that "it was an act of kindness in HIM, to spare those whom the laws of war would have authorized him to put to death."
But the rights of war, for which these writers plead, could not PERFECTLY JUSTIFY the putting prisoners to death, but could only grant IMPUNITY to those who availed themselves of the barbarous custom. There is a wide difference however between actions like these, and destroying an enemy by proper means of hostility. For, as Tacitus says, "in the leisure hours of peace the merits and demerits of every case may be examined and weighed, but, in the tumult and confusion of war, the innocent must fall with the guilty": and the same writer, in another place, observes, that "there are many actions, which the principles of humanity cannot ENTIRELY approve, but which the policy of war requires."And it is in this, and no other sense that Lucan has said, "the complexion of right may be assigned to what is wrong.
VI. This right of making lawful what is done in war is of great extent. For in the first place it comprises, in the number of enemies, not only those who actually bear arms, or who are immediately subjects of the belligerent power, but even all who are within the hostile territories, as appears from the form given by Livy, who says, that "war is declared against the sovereign, and all within his jurisdiction."For which a very good reason may be assigned; because danger is to be apprehended even from THEM, which, in a continued and regular war, established the right now under discussion.
Reprisals do not come exactly under the same rule. For like taxes, they were introduced for the discharge of public debts, for no part of which temporary residents, or foreigners are answerable. Therefore Baldus is right in his observation, that, after war is actually begun, much greater latitude is allowed, than in the bare right of making reprisals. So that what is said of foreigners, who enter into an enemy's country, and reside there, after war is avowedly declared and begun, is undoubtedly true.
VII. But persons, who had gone to reside there before the war was begun, seem by the law of nations to be included in the number of enemies, unless within a reasonable time they chuse to withdraw. So that the Corcyraeans, when going to besiege Epidamnus, gave leave to all strangers to withdraw, denouncing that they would otherwise be treated as enemies.
VIII. But the persons of natural-born subjects, who owe permanent allegiance to a hostile power may, according to the law of nations, be attacked, or seized, wherever they are found. For whenever, as it was said before, war is declared against any power, it is at the same time declared against all the subjects of that power. And the law of nations authorises us to attack an enemy in every place: An opinion supported by most legal authorities: thus Marcian says "that deserters may be killed in the same manner as enemies, wherever they are found." They may be lawfully killed there, or in their own Country, in the enemy's country, in a country belonging to no one, or on the sea. But as to the unlawfulness of killing, or violently molesting them in a neutral territory, this protection does not result from any personal privileges of THEIR OWN, but from the rights of the SOVEREIGN of that country. For all civil societies had an undoubted right to established it as a standing maxim that no violence should be offered to any person within their territories, nor any punishment inflicted but by due process of law. For where tribunals retain their authority in full vigour, to try the merits of every offence, and, after impartial inquiry, to acquit the innocent, or condemn the guilty, the power of the sword must be restrained from inflicting promiscuous death.
Livy mentions the circumstance of seven Carthaginian gallies riding at anchor in a part belonging to Syphax, who was then at peace with the Carthaginians and Romans, Scipio arrived at that time, with two gallies, which might have been attacked and sunk by the Carthaginians, before they could enter the port: a brisk wind rising carried them in, before the Carthaginians could weight anchor; but out of respect to the king's authority they durst not attack the Romans in his harbour.
IX. But to return to the subject, which is, to decide how far the power of lawfully destroying an enemy, and all that belong to him, extends. An extent of which we may form some conception from the very circumstance, that even women and children are frequently subject to the calamities and disasters of war. There is no occasion to allege in this place, as an example, the conduct of the Hebrews, who slew the women and children of the Heshbonites, and who were commanded to execute vengeance upon the Canaanites, and upon all, who were involved in the same guilt. Those examples, where God MANIFESTLY interposes his commands, are not to be drawn into a precedent for authorizing actions of the SAME kind on DIFFERENT occasions. For the supreme and disposing power of God can never properly be compared with that, which men are allowed to exercise over each other. The Psalmist's expression of the Babylonian children being dashed against the stones is a much stronger proof of the custom commonly prevailing among nations, in the use of victory, to which the language of Homer bears a close resemblance, where the poet says, that "in the cruel rage of war, even the bodies of infant-children were dashed against the ground." Thucydides relates, that when Mycalessus was captured by the Thracians, they put all, even women and children to the sword. Arrian relates the same of the Macedonians, when they took the city of Thebes. And Germanicus Caesar, according to the account of Tacitus, laid waste whole cantons of the Marsians, a people of Germany, with fire and sword, to which the historian adds, "without sparing either age or sex." The Jewish women and children too were exposed by Titus, to be torn to pieces by wild beasts at a public spectacle. Yet neither of those generals were thought deficient in humanity, so much had custom reconciled the minds of men to this barbarous usage. So that the massacre of the aged, like that of Priam by Pyrrhus, is no way surprising.
X. The right of putting prisoners of war to death, was so generally received a maxim, that the Roman Satirist has founded an adage upon it, and said, "that when you can sell a prisoner for a slave, it would be absurd to kill him." Words which imply the full power of doing so, if the captor thought proper. The commentators indeed assign the act of saving, as the derivation of the Latin word, servus, a slave. Thus Thucydides speaks of the prisoners taken at Epidamnus, and killed by the Corcyraeans, and Hannibal is reported to have massacred five thousand prisoners at once. Nor was this power limited by the law of nations to any particular time, though it was controuled by greater restrictions in some places, than in others.
XI. Besides many examples occur of suppliants, being killed. Both ancient poets and historians relate such actions, as ordinary practices, authorized by the laws of war. Augustin commends the Goths for sparing suppliants, who had fled to churches for refuge, and adds by way of comment, that "they deemed it unlawful to avail themselves of the power, which had usually been allowed by the laws of war."
Nor did those who offered to surrender always experience the lenity and mercy, which they sought thereby. Tacitus relates, that when the city of Uspes was invested, the besieged sent a deputation with offers of an immediate surrender, and of no less than ten thousand slaves, on condition that the free-born should remain unhurt. The terms were rejected—A proof that such a rejection was thought conformable to the rights of war.
XII. But even after an unconditional surrender, we find that those, who had capitulated were sometimes put to the sword. In this manner the princes of Pometia were treated by the Romans, the Samnites by Sylla, the Numidians and Vercingetorix by Caesar. It was almost a Standing practice with the Romans to crown their triumphs with the death of an enemy's generals, whether made prisoners actually in the field, or by capitulation. Cicero notices this custom in his fifth speech against Verres. Livy may be consulted on this point in many parts of his history, particularly in the twenty-eighth book: and Tacitus also in the 12th book of his Annals. The latter writer, in the first book of his HISTORY, relates that Galba ordered every tenth man of those, whom he had, upon their earnest supplication, admitted to surrender, to be beheaded: and Caecina, after the capitulation of Aventicum, punished Julius Alpinus, one of the leading men, with death, as a chief promoter of the war, leaving the rest to the mercy or cruelty of Vitellius.
XIII. Historians sometimes account for this right of putting enemies to death, especially prisoners, or suppliants, either on the score of retaliation, or for obstinate resistance. These may sometimes be the real, but cannot be the JUSTIFIABLE motives of such proceedings. For the law of retaliation, strictly and properly so called, must be directly enforced upon the person of the delinquent himself. Whereas, in war, what is called retaliation frequently redounds to the ruin of those, who are no way implicated in the blame. The general consequences of war are thus described by Diodorus Siculus, "they could not be ignorant, says he, having learnt from experience, that all being involved in the common fortune of war, they are liable on both sides in defeat, to suffer the same calamities, which they themselves would have inflicted upon the conquered party."
But as the Neapolitans reply to Belisarius, in Procopius, no one can he though deserving of punishment for a resolute adherence to the side on which he is engaged, especially when actuated by natural and just motives in his choice of that side. So far from incurring guilt by such a resolution, it is on the other hand more criminal for any one to desert his post: and so it was judged by the military laws of ancient Rome. Livy says, it was a capital offence, for which no fear of danger could be pleaded as an excuse. So that in the rigid application of this right, OWING TO ITS IMPORTANCE, every one is left to use his own discretion, and there may be times and circumstances, in which the law of nations will justify its full exertion.
XIV. The same right was exercised upon hostages also, not only upon those who had bound themselves, as it were, by convention, but even upon those, who had been delivered up by others. Two hundred and fifty hostages were once massacred by the Thessalians, and the Volsci Aurunci to the amount of three hundred by the Romans. It is to be observed that children were sometimes given, as hostages, which we find was done by the Parthians, and by Simon, who was one of the Maccabees. And in the times of Porsena it was usual to deliver women, as hostages: a practice, which, as Tacitus informs us, was followed by the Germans.
XV. As the law of nations permits many things, in themanner above explained, which are not permitted by the law of nature, so it prohibits some things which the law of nature allows. Thus spies, if discovered and taken, are usually treated with the utmost severity. Yet there is no doubt, but the law of nations allows any one to send spies, as Moses did to the land of promise, of whom Joshua was one.
Persons of that description may sometimes be LAWFULLY employed by those, who are engaged in an EVIDENTLY just war. Others too, who have not such evident proofs of the justice of their cause, may plead the rights of war as a vindication for employing such persons.
But if any are to be found, who disdain to avail themselves of such a privilege, or opportunity, no argument either FOR, or AGAINST the LAWFULNESS of employing spies can be drawn from their conduct, which proceeds rather from a nobleness of mind, and a confidence in open strength, than from any decided opinion upon the subject.
An enemy's property may be wasted and plundered—Things deemed sacred, how far exempted—Stratagem, how far permitted.
I. CICERO, in the third book of his offices, has said that there is nothing repugnant to the LAW OF NATURE in spoiling the effects of an enemy, whom by the same law we are authorized to kill. Wherefore it is not surprising that the same things should be allowed by the LAW OF NATIONS. Polybius, for this reason, in the fifth book of his history, maintains, that the laws of war authorize the destruction of an enemy's forts, harbours, and fleets, the seizure of his men, or carrying off the produce of his country, and every thing of that description. And we find from Livy that there are certain rights of war, by which an enemy must expect to suffer the calamities, which he is allowed to inflict, such as the Burning of corn, the destruction of houses, and the plunder of men and cattle. Almost every page of history abounds in examples of entire cities being destroyed, walls leveled to the ground, and even whole countries wasted by fire and sword. Even in cases of surrender, towns have sometimes been destroyed, while the inhabitants were spared —an example of which is given by Tacitus, in the taking of Artaxata by the Romans; the inhabitants opened their gates and were spared, but the town was devoted to the flames.
II. Nor does the law of nations, in itself, considered apart from other duties, which will be mentioned hereafter, make any exemption in favour of things deemed sacred. For when places are taken by an enemy, all things without exception, whether sacred or not, must fall a sacrifice. For which it is assigned as a reason, that things which are called sacred, are not actually excepted from all human uses, but are a kind of public property, called sacred indeed from the general purposes, to which they are more immediately devoted. And as a proof of this, it is usual, when one nation surrenders to another state or sovereign, to surrender, along with other rights, every thing of a sacred kind, as appears by the form cited from Livy in a former part of this treatise.
And therefore Ulpian says, that the public have a property in sacred things. Conformably to which Tacitus says, that "in the Italian towns all the temples, the images of the Gods, and every thing connected with religion belonged of right to the Roman people."For this reason a nation, as the Lawyers, Paulus and Venuleius openly maintain, may, under a change of circumstances, convert to secular uses things, that have before been consecrated: and an overruling necessity may justify the hand, which has formely consecrated the object in employing it as one of the resources and instruments of war. A thing which Pericles once did under a pledge of making the restitution: Mago did the same in Spain, and the Romans in the Mithridatic war. We read of the same actions done by Sylla, Pompey, Caesar, and others. Plutarch in his life of Tiberius Gracchus says that nothing is so sacred and inviolable, as divine offerings: yet to one can hinder these from being removed or applied to other purposes at the pleasure of the state. Thus Livy mentions the ornaments of the temples, which Marcellus brought from Syracuse to Rome, as acquisitions made by the right of war.
III. What has been said of sacred things and edifices applies also to another kind of solemn fabrics, and those are sepulchral structures, which may be considered not merely as repositories of the dead, but as monuments belonging to the living, whether families or states. For this reason Pomponius has said, that these, like all other sacred places, when taken by an enemy may lose their inviolability, and Paulus is of the same opinion, observing that we are not restrained by any religious scruple from using the sepulchers of an enemy: for the stones, taken from thence, may be applied to any other purpose. But this right does not authorize wanton insult, offered to the ashes of the dead. For that would be a violation of the solemn rights of burial, which, as it was shewn in a preceding part of this work, were introduced and established by the law of nations.
IV. Here it may be briefly observed, that, according to the law of nations any thing, belonging to an enemy, may be taken not only by open force, but by stratagem, provided it be unaccompanied with treachery.
Law of nature with respect to the acquisition of things captured in war—Law of nations on the same subject—In what cases the law of nations confirms the capture of things moveable—Lands acquired by conquest—Lawful prize cannot be made of things not belonging to an enemy—Goods found on board an enemy's ships —Law of nations authorizes the making prize of what an enemy has taken from others in war—Sovereigns may acquire possession and dominion through those employed by them—Acts of hostility divided into public and private—Territory may be acquired by a sovereign or people—Private and public captures explained—Discretionary power of generals in this respect—Prizes belong either to the treasury, or to those, who take them—Places sometimes given up to be plundered by the soldiery—Different methods of dividing spoils—Peculation, a portion of the spoils sometimes given to allies, who have supported the war—Sometimes given up to subjects—This illustrated by examples—Utility of the above practices—Whether things taken without the territory of either of the belligerent powers can be acquired by the rights of war—In what manner this right peculiarly applies to solemn wars.
I. BESIDES the impunity allowed to men for certain actions, which have been mentioned before, there are other consequences and effects, peculiar to the law of nations, attending solemn and formal war. The law of nature indeed authorizes our making such acquisitions in a just war, as may be deemed an equivalent for a debt, which cannot otherwise be obtained, or as may inflict a loss upon the aggressor, provided it be within the bounds of reasonable punishment. According to this right, as we find in the fourteenth chapter of Genesis, Abraham devoted to God a tenth part of the spoils, which he had taken from the five kings: and the inspired writer in the seventh chapter of his Epistle to the Hebrews gives the same interpretation of this passage. In the same manner the Greeks too, the Carthaginians, and the Romans, devoted a tenth portion of the spoils of war to their deities. Jacob, in making a particular bequest to Joseph above his brethren, says, "I have given to thee one portion above thy brethren, which I took out of the hand of the Amorite with my sword, and with my bow." In this place, the expression, I TOOK, is used according to the prophetic style, where an event, that will for certain take place, is spoken of in the past time, and an action is here attributed to Jacob, which some of his descendants were to perform, supposing the progenitor and his children to be the same person.
Nor is it upon conjecture alone that such a right is founded, but the divine law giver himself pronounces sentence against a city that has rejected the offers of peace, and afterwards been taken by storm, that he gives all her spoils to the conqueror.
II. But according to the law of nations, not only the person, who makes war upon just grounds; but any one whatever, engaged in regular and formal war, becomes absolute proprietor of every thing which he takes from the enemy: so that all nations respect his title, and the title of all, who derive through him their claim to such possessions. Which, as to all foreign relations, constitutes the true idea of dominion. For, as Cyrus, in Xenophon observes, when the city of an enemy is taken, every thing that is taken therein becomes a lawful prize to the conquerors; and Plato, in his treatise on laws asserts the same. Cicero in his speech against Rullus says that Mitylene belonged to the Roman people by the laws of war, and the right of conquest; and, in the first book of his offices, he observes, that some things become the private property of those, who take possession of them, when unoccupied, or of those, who make a conquest of them in war.—Theophilus, in his Greek institutes, calls the one the natural mode of acquisition, and Aristotle denominates the other the natural way of acquisition by the sword, without regarding any other reason, but the bare fact, from which the right arises. Thus Nerva, the son, as Paulus the lawyer relates, said that property arose from natural possession, some traces of which still remain respecting wild animals taken either upon the sea, or upon the land, or birds flying in the air. It is seen also in things taken in war, all which immediately become the property of the first captors. Now things are considered as taken from an enemy, when taken from his subjects.
Thus Dercyllides argues, in Xenophon, that as Pharnabazus was an enemy to the Lacedaemonians, every thing belonging to Mania, who was his subject, might be seized by the laws of war.
III. But in this question upon the rights of war nationshave decided, that a person is understood to have made a capture, when he detains a thing in such a manner, that the owner has abandoned all probable hopes of recovering it, or, as Pomponius, speaking on the same subject, says, when a thing has escaped beyond pursuit. This takes place with respect to moveable things in such a manner, that they are said to be taken, when they are carried within the territories of the enemy, or places belonging to him. For a thing is lost in the same manner as it is recovered by postliminium. It is said to be recovered whenever it returns within the territories of its owner's sovereign, that is, into places, of which he is master. Paulus indeed has expressly said, that a power or state has lost a subject, when he has gone, or been carried out of the territories of that power: and Pomponius defines a prisoner of war to be an enemy, whom the troops of some other belligerent power have taken and carried into one of their own places; for before he is carried into those places, he continues still a subject of the enemy.
The law of nations, in these respects, treated persons and things in the same manner. From whence it is easy to understand, what is meant, when in another place it is said that things taken from an enemy immediately become the lawful prize of the captors, but only upon the condition of those things continuing in their possession for a reasonable and certain time. Consequently it is plain, that ships and other things taken at sea cannot be considered as really the property of the captors, till they have been carried into some of their ports, or to some place where their whole fleet is stationed. For in that case all hope of recovery seems to have vanished. By a late regulation among the European powers, it has been made an established maxim of the law of nations, that captures shall be deemed good and lawful, which have continued in the enemy's possession for the space of twenty four hours.
IV. Lands are not understood to become a lawful possession and absolute conquest from the moment they are invaded. For although it is true, that an army takes immediate and violent possession of the country which it has invaded, yet that can only be considered as a temporary possession, unaccompanied with any of the rights and consequences alluded to in this work, till it has been ratified and secured by some durable means, by cession, or treaty. For this reason, the land without the gates of Rome, where Hannibal encamped, was so far from being judged entirely lost, that it was sold for the same price that it would have been sold for before that period.
Now land will be considered as completely conquered, when it is inclosed or secured by permanent fortifications, so that no other state or sovereign can have free access to it, without first making themselves masters of those fortifications. On this account Flaccus, the Sicilian, assigns no improbable conjecture for the origin of the word territory, because the enemy is DETERRED from entering it. At least there is as much probability in this conjecture, as in that of Varro, who derives it from the word terendo, treading the soil. Frontinus deduces it from terra, the earth, and Pomponius from the TERROR of judicial authority exercised in each country. Xenophon however in his book on tributes, seems to accord with the first of these opinions: for he says, that in time of war the possession of a country is kept by walls, strong holds, and barriers.
V. It is a clear point too, that for any thing to become a prize or conquest by the right of war, it must belong to an enemy. For things, within an enemy's territory, for instance, in any of his towns or garrisons, cannot be acquired as property by the laws of war, if the owners of those things are neither subjects nor confederates of the enemy. It is observed in one of the speeches of Aeschines, that Philip, though at war with the Amphipolitans, could not lawfully take possession of Amphipolis, as a conquest, it being a city, which belonged to the Athenians. For as the enemy is likely to derive no assistance in the war, from things which neither belong to himself, nor to a confederate, no just reason can be assigned for taking them, and the right of making things change their owners by force is of too odious a nature to admit of any extension.