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chapter 22: On the Rights of War and Peace 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael 
Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).
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On the Rights of War and Peace1
War and the law of nations
This is not the place to put forward a general doctrine of war, which should be derived from On the Duty of Man and Citizen, I.5; although Pufendorf has only discussed defense there, we have added some notes to section 17 on the prosecution of one’s rights by force which, we suggested, is relevant to the topic.2 What we said there about self-defense or prosecution by force is equally true, whether the conflict is between individual men in a state of nature with each other or between multitudes of men, united either by the obligation of a simple agreement or by the bond of government. Hence too the genuine notion of war, as it is considered in the discipline of natural right, is abstracted from all variations of that kind.
War is therefore defined by Grotius (Rights of War and Peace, I.I.2) as the state of those who are in violent conflict, so far as they are so, and that would be adequate, if he had added for the sake of rights, so as to exclude conflicts undertaken for practice or profit. Titius, though including that distinguishing mark, has a definition of war that is too wide for another reason, the state of those who are in dispute, in fact or intention, for the sake of rights.3 As if the general notion of war abstracted not only from the number of the disputants but also from the violent manner of the dispute, so that even legal disputes, not to mention verbal conflicts outside of court, would be included in the scope of war.
Since therefore war is not by its nature unique to states, the only things strictly relevant to this topic are those which concern the mutual obligation of a ruler and his subjects with regard to war or the sharing among them of the pertinent obligations, or finally the privileges voluntarily granted by the right of nations to those who with the performance of all due solemnities wage wars by the authority of sovereigns, in states which are known and recognized as such by neighboring nations. [II.16.1.i]
These [a demand for reparations and guarantee for the future] are contained in the affirmation by which we assert our claim to what is due to us by others but has been denied. That is, every just war presupposes a wrong, which comes about (as we noted above, p. 44) through an unjust action which violates some natural or real right, or through the omission of an action due, which constitutes a refusal to satisfy a personal right. Compare Grotius, II.I (at the beginning). [II.16.2.i]
A declaration (as Grotius rightly points out, III.III.7) is either a conditional declaration, which is associated with a demand for restoration of property and precedes the outbreak of war by some interval of time, or a pure declaration, which accompanies the actual commencement of hostilities. One must infer from the end and scope of either, the cases in which the one or the other is necessary by natural law. The aim of a pure declaration is to announce what right it is for whose protection or pursuit the war is being waged. The aim of a conditional declaration is to make known that what we claim as rightly ours or as owed to us, cannot be obtained without military force.
Hence it follows, (1) that no declaration on the part of the defending side is required by nature for a legitimate defense against an unjust aggression, if no declaration of cause preceded it, or if it was manifestly unjust or no time was allowed for a response. But when a plausible cause for starting a war has been declared, because it rests on facts which would suffice to justify aggression if they were true and their consequences could not be nullified by other facts, in that case I would think the defender obliged, at the earliest opportunity, either to deny those facts or to adduce other facts which nullify the claim of the aggressor (even though his facts may be true). And sometimes no reason may be given for an act of aggression, yet still, if the other party defends himself by offensive acts not only against the aggressor himself but also against his subjects, who did not share his violent act and perhaps were not aware of it (I have discussed the grounds on which they are obligated above at pp. 175–81), then in cases of this sort one is always obliged to make clear the reason for using force against the individuals on whom it is directly inflicted, and to allow them time to produce what one is claiming from them; the only exception is if force is being employed as a punishment, but innocent citizens are not liable to punishment for a public crime as is clear from what has been said.
It also follows, (2) that no conditional declaration is required when war is made on the guilty parties themselves, to inflict capital punishment on them. However a pure declaration is required. For force is never to be used against anyone without signifying the reason, unless it is quite clear from the situation itself. The same perhaps should be said about the forcible seizure of someone who shows by obvious signs that he designs to use force against us, i.e., in this case a pure declaration is required, accompanying the forcible seizure, not a conditional declaration preceding it, if this would be harmful to our situation.
(3) Finally it follows, that when war is made for some other reason, a prior or conditional declaration is required, so that one gives an adequate indication to the other party of what one is claiming before using force; and so that it may be clear that force has to be used to prosecute one’s right in this respect because of neglect to settle the claim. I do not exempt the case in which one intends to seize one’s own property, if by chance one cannot get hold of it without hurting those who are holding it.4 When there has been an explicit conditional declaration, and the required restitution is not forthcoming, it is not necessary also to make a pure declaration; however this seems to be absolutely required, when there has been a merely implicit conditional declaration, i.e., a declaration concealed in the demand for what is due.
What we have said pertains to the justice of acts of war as defined by natural right. The account of declaration [of war], as it is required for the formality of war and for the effects of a formal war, is different, and is defined by what is specifically called the law of nations. Hence this topic also seems to require us to make some brief remarks on the law of nations, so far as it is distinguished, rightly or wrongly, from the natural law.5
The terms natural law and law of nations are sometimes used in a confused manner. They are often understood to indicate bodies of law which are wholly or partly distinct, but the distinction is differently explained by different authors. Some, including Hobbes, make the law of nations one of two branches of natural law, i.e., there is the natural law of men and the natural law of states, and they want to apply law of nations to the latter; this is the only meaning of the phrase that they recognize.6 For most writers however the law of nations is a wider term than natural law. I will not waste time on those who include in the law of nations everything which they find introduced or approved in the civil customs of all or most nations, or at least the more civilized nations, since the only kind of law of nations relevant to this discussion is that which pertains to the mutual association of nations with each other, as Grotius says (II.VIII.1).
The philosophy of Ulpian is also irrelevant, in recognizing as natural law only that which nature has taught all animals; for natural law is to be judged not from the instinct of animals but from the dictation of reason, as almost everyone today agrees. More correctly several interpreters both of natural and of civil law explain the distinction between natural law and the law of nations specially so called, according to the two definitions of the law of nations which the Emperor gives at Institutes, I.2.1 and 2.7 The first is the law of nations as defined at section 1 as what natural reason has established among all men, which is said by the interpreters to be the primary law of nations and is actually natural law itself. The second is defined in section 2, i.e., what human nations have established for themselves under the pressure of custom and human needs, which is called by the same interpreters the secondary [law of nations], is actually the law of nations itself in its particular sense, and is called by Grotius the voluntary law of nations.
In this respect some of the most distinguished jurists seem to me to have gone astray (see Vinnius8 on these paragraphs and Huber, On the Rights of Civil Society, I.I.5) in that they restrict the primary law of nations, which they recognize as identical with natural law, to what is directly known or, as they say, known by the noetic intellect; and they ascribe to the secondary law of nations whatever is discerned by the dianoetic intellect, i.e., the intellect that makes use of argumentation.9 As if conclusions deduced from necessary principles which have immutable truth could be altered at men’s discretion! Rather we should assert to the contrary that the truth of moral principles and the truth of the conclusions that flow from them are equally necessary and equally valid. I do not deny that these conclusions often presuppose certain human actions. Nonetheless it is necessarily and unalterably true that, given those actions, certain rights and certain corresponding obligations follow. For natural law deals not only with things which exist without the will of men, but also with many things which are consequent on the action of a human will, as Grotius rightly pointed out (I.I.10). And he is therefore right to ascribe to natural law whatever is known by nature to be prescribed or forbidden by God by the dictate of right reason, whether direct or indirect. To the voluntary law of nations belong only those things which have received their obligatory force from the will of all, or many, nations.
There is a major dispute about this voluntary law of nations, with regard to its name and to its obligatory force. Concerning its name, it is quite clear that as the voluntary law of nations does not proceed from a superior it cannot be called a law properly so called. The question of its obligation is more difficult, i.e., whether or not things which have been introduced into the customs of all or most nations, or at least of the more civilized nations who interact with each other, have at least the force of an agreement which is either implicit or tacitly concluded among those who have an interest in it, and from which it would be wrong to withdraw. Here we feel we should take a middle line, i.e., that rulers of individual states are so far obliged to observe these customs, that they should not withdraw from them in order to deceive other nations, that is, if the others have not been informed in time, so far as their interest is concerned. This is the whole extent of the obligation where there is no more particular, or explicit, agreement.
This is not the place to rehearse the details of what has been accepted in the past or received today as included in this voluntary law of nations. There will be an opportunity below to note in passing some particular points which pertain to the right of war, and above all to the effects which most nations have agreed to attribute to a public and formal war. To produce these effects, as Pufendorf points out in this paragraph,10 it is required not only that the war be waged by the authority of sovereigns on both sides, but also that it have been publicly declared or proclaimed, at least by one of the parties. This declaration, as required by the law of nations for such ends, has no other aim (as Grotius maintains at III.III.11—see however the notes of Barbeyrac)11 than that it be absolutely clear that the war is being waged not as a private enterprise but by the will of both peoples or of their leaders. It is consistent with this that it is not required (as indeed the peerless Grotius points out, ibid., sec. 13) that the declaration of war be made some time before; and for a good reason, I would add, so that it may explain the particular causes of the war; though a proclamation of causes should be the special aim of a declaration that is required for the justice of a war as defined by natural law. [II.16.7.i]
Grotius offers this first effect of a public and declared war according to the voluntary law of nations at book III.IV.2 and 3 ff. But it would be to the interest of the human race that such license or external impunity be restricted in the following way. Even if men fighting under the banner of a declared war could take up arms for any cause whatsoever, and indulge without purpose or moderation in the slaughter of enemy troops, and in plunder, arson, and looting against the enemy population at large, and get away with it, at least deliberate slaughter of infants and other obviously innocent people, forcible rape and adultery, and similar atrocious acts of cruelty and savage fury should not go unpunished among the civilized, particularly the Christian, nations. Compare Grotius, book III, ch. IV with ch. XI, also ch. V and ch. XII.12 [II.16.12.i]
The other proper effect of a declared war according to the law of nations, which is discussed by Grotius at III.VI.2 ff., is the acquisition of property captured in war. So far as property is rightly captured in war by the natural law, and so far as it is acquired by being captured, I have said enough above (pp. 70–71). This right between enemies who are not bound by any more specific convention, of taking, keeping, or recovering things by war, seems to rest only on those natural foundations. But seizure which occurs in a public and declared war entails certain effects of quasi-law (called by Grotius, external ownership) in the eyes of most nations. These effects have usually been introduced for the benefit of states which have followed neither party in war into whose territories things taken in war have been transported, or for the benefit of private individuals who, not being themselves enemies, have acquired by legitimate title other people’s property taken in war.
On the former: it may easily happen that moveable things captured in war are transported into the territory of a state which has followed neither party in the war, either by those who took them or by others who have acquired them under some title. If the objects taken were reclaimed by their former owners, and the ruler of that state were obliged to order their restoration on the hypothesis that they had been unjustly stolen, it would almost inevitably happen that every state would be involved, even against its will, in disputes with neighboring states. To avoid this, it has been decided that any war fought under the auspices of sovereign powers on both sides, and duly declared, should be considered just on both sides to the extent that if members of a nation which follows neither party in a war take things in such a war or acquire them by legitimate title and if the things are carried into their own country, they should be defended in their possession of them, as things acquired by right; nor would their repossession be permitted to their former owners on this ground.
But also, with respect to the latter cause, it has been decided to assign the same effect of capture in war, in the case of things of that kind, if by chance they are found on the high seas or in any other place which has no government, in the hands of a person who, though not an enemy himself, has acquired by legitimate title things captured by an enemy. Further it did not seem absurd either to the Romans or to other nations to grant an appearance of right to hostile seizure even within the limits of the state from which the things had been taken. However the effect of this was voided by the right of postliminium13 in the case of captured men and immoveables as well as (originally) in the case of certain moveables. In the case of other things, and in our day when the right of postliminium no longer exists, in the case of moveables generally, the right of seizure in war is valid to the extent that former owners cannot succeed in a claim for such things seized in war against any nonhostile person, who has transported them to the territory of the same or of an allied state, whether they have been seized back from the enemy in the same war, or taken by some third party in another war, or even acquired in the course of commerce or for some other private reason. On captured men see pp. 207–9. [II.16.13.i]
[Pufendorf asserted that immoveable property is considered to be captured when it can no longer be effectively held. Carmichael comments:]
The usefulness of this definition relating to immoveable property may be denied on good grounds. For everyone admits that, between actual enemies, it makes no difference whether the thing is completely captured or not, since if the war continues, it may be recovered by the same right by which it was previously defended. But I do not find it agreed by the common consent of nations, that the right of the former owner of immoveable property against a third party who has acquired it by some title from the enemy, is worse than against the enemy himself; provided that the former owner did not fail to assert his right to it, or at least gave no sign of an intention to abandon it. But if an immoveable thing has been restored to the jurisdiction of the same government, it is a matter of undoubted law that it is now restored to the former owner by the right of recovery.14 The only direct effect of the seizure in war of immoveable property seems to be that those who have no interest in it, if by chance they owe any real servitude on the occupied estate, may rightly pay it to the new possessor, and should not be blamed by the former owner for doing so. I will note in the following paragraphs (pp. 207–8) that seizure of government has a similar effect but with wider application. [II.16.13.iii]
[Pufendorf says: “Rule over conquered peoples as over individuals is also won by war.” Carmichael comments first on individuals and then on peoples.]
I have fully explained earlier (ch. 16, pp. 139–42) to what extent the captor obtains a right over his captive by nature; I have also explained that it is invalid to cite the consent of nations in defense of any license which goes beyond the limits allowed by natural law in this area (even allowing that one may see the consent of nations in depraved moral practices). But this question is of less importance among us, since the ancient custom of enslaving those captured in a declared war has long been abolished by reverence for the Christian name among Christians fighting each other. Furthermore though a Christian captured in war by infidels may be compelled to be a slave among them, yet he is not today thought to have changed his status in his own state any more than if he had been captured by robbers. Add Titius, Observations on Lauterbach, 1443;15 see also on this whole subject, Grotius, III.VII, and compare ch. XIV.16 [II.16.14.i]
I have given what seems to be the position of the law of nature on this question at pp. 175–81. As far as the law of nations is concerned, if it is a question of acquiring government over men themselves, this is no more valid against men generally than against individuals (see the previous note, and compare pp. 141–42). But if it is a question of acquiring government over territory, or of the right of requiring that no one remain on the land except under the law of civil subjection, I would not think that the voluntary law of nations is much more valid here than I argued that it was in the acquisition of immoveable objects (see above, pp. 205–6). For in spite of the immorality of belligerent nations, in spite of the sentiments of those who rejoice in superior force, it is not clear that there has ever been any common agreement among nations that a conquered prince or people, who have not consented in any way to the government of a conqueror (and for what is not to be considered as a sign of that consent, see pp. 179– 81), has not as valid a right, against the enemy or against anyone deriving his title from him, to recover the government, as he had formerly to defend it. Furthermore, I would not think that even sovereigns who do not have patrimonial governments, could validly agree anything to the contrary, seeing that it would be no more than a transfer of government “in a certain contingency” and indeed to an “uncertain person.”17
The one effect that the consensus of nations seems indubitably to have attributed to violent seizure of government over a people, or part of a people, by regular war, as well as to seizure of government over a whole people by internal sedition, is that foreigners who owe anything to a people or community, whose government has been seized by force, may rightly pay to an invader who demands it, what the legitimate ruler was able to demand rightfully, and by paying be discharged of the debt. And hence if the prince were restored to power or a people to its freedom, they could not claim a debt so paid. This is introduced for the reason indicated above, i.e., so that those who follow neither side in a war may not be unwillingly involved in other people’s quarrels. Since this consideration does not obtain in contracts entered into of one’s own accord, I would not think that the same consideration should be extended to such people, and least of all to beneficiaries; hence acceptilatio18 is not at all an adequate substitute for payment in this case. Concerning seizure of government, see Grotius, III.VIII, and compare ch. XVI, but above all Locke, Second Treatise of Government, ch. 16. [II.16.14.ii]
Concerning truces and other agreements made in the continuing course of a war, see Grotius, III.XXI.2 ff., but first read ch. XIX of the same book. The reasons by which our author at Of the Law of Nature and Nations, VIII.VII.2, seems to impugn the natural obligation of all agreements between enemies which do not remove the state of war are so trivial, and at the same time of such dangerous consequences, and for both reasons so unworthy of such a man, that we are ashamed to give them here, much less to spend time in discussing them. See the distinguished Barbeyrac’s note on the passage cited above.19 [II.16.15.i]
On agreements that restore peace, Grotius, III.XX, should be carefully read. The philosophy of Pufendorf on their validity, in cases where they have been extorted by unjust force, is too lax, and not sufficiently friendly to human society (Of the Law of Nature and Nations, VIII.8.1). Compare above, pp. 85–86. Further, just as preceding injuries are buried by the agreement which restores peace, so also subsequent injuries founded in some new pretext, while they afford a new cause for war, do not break the peace with the effect of reviving the old disputes: as Grotius rightly points out in the same chapter, sec. 27; Titius takes a different view in his note on this passage. [II.16.17.i]
Conquest and loss of citizenship
[Pufendorf observed that men cease to be citizens either when they leave a state with its express or tacit consent and settle with their fortune elsewhere, or when they have been deprived of the right of citizenship and have been driven into exile, or when they have been conquered by an enemy and have been obliged to submit to its government. Carmichael’s reflection was prompted by the third and last alternative: his remarks recapitulate his earlier insistence on the rights of conquered people at pp. 164–72 and 207–9.]
[Men may be deprived of their citizenship violently] either as individuals, when they are captured in battle and taken away from their ancestral homes, or together, when the region or the city in which they have their homes is occupied in war. In the first case, the enslavement of men taken captive in war has been abolished among Christians, so that the country is not lost; and in the second case, that part of the country which has been occupied in war is not severed from the state: its relationship is merely kept in suspense until the conclusion of war. And in all the other ways [in which citizenship may be dissolved] which our author reviews in this section, no one may cease to be a citizen as long as the state itself remains, even though in the last case one’s citizenship may be narrowly confined. Men cease to be citizens, to be sure, when the state itself is destroyed. In order to determine how this happens, see Pufendorf, Of the Law of Nature and Nations, VIII.XII.8–9, Grotius, II.IX.4–6, and also Locke, Second Treatise of Government, sec. 211. The authors cited also describe other changes in states which do not however dissolve the civil bond. I note in passing that the instance of the Scots which Pufendorf cites (sec. 8, end ) is not an example [of the dissolution of a people]. For the Scots were not so scattered by Maximus that they were no longer able to unite, as subsequent events have shown.20 [II.18.15.i]
[1.] From the notes to bk. II, ch. 16, “On War and Peace”; and bk. II, ch. 18, “On the Duties of Citizens.” Carmichael makes no significant commentary on ch. 17, “On Treaties.”
[2.] See above, pp. 67–71, on the right of self-defense.
[3.] Titius, Observationes, no. 684.
[4.] In Rights of War and Peace, III.III.6, no. 7, p. 554, Barbeyrac disputed Carmichael’s opinion that a conditional declaration was required before using force to reclaim one’s own possessions from persons not party to the war. He considered the retainers of such possessions to be “accomplices in the Injustice, [who] therefore deserve to be treated with no greater Tenderness than the principal Detainer.”
[5.] Grotius, Rights of War and Peace, III.III.6, pp. 553 ff.
[6.] Hobbes, On the Citizen, XIV.4, p. 156.
[7.] Justinian, Institutes, I.2.1 and 2.
[8.] Vinnius, In quattuor libros, I.2.1 and 2.
[9.] Huber, De Jure Civitatis, I.I.5, pp. 21–23.
[10.] On the Duty of Man and Citizen, I.16.6, p. 169.
[11.] In his note on Grotius at III.III.1 (Rights of War and Peace, p. 556), Barbeyrac merely observes that wars may be declared in many ways: that an army appearing upon a frontier may signal a state of war as effectively as a herald.
[12.] In these chapters Grotius compares the right of killing enemies and of acquiring things taken in a declared war (ibid., III.IV, pp. 557 ff. and III.V, pp. 573 ff.) with what moderation requires in killing enemies and in laying waste (ibid., III.XI, pp. 650 ff.).
[13.] Postliminium, recovery of rights by a returning Roman citizen who had been a prisoner of war. Grotius devoted a chapter to the right of postliminium (ibid., III.IX, pp. 611 ff.).
[14.] Barbeyrac reinforced Carmichael’s opinion on this subject, observing that whereas third parties or neutral countries in war may be ignorant of the proper owner of moveable goods, they could not be unaware of the proper ownership of land (note on ibid., III.VI.2, n. 1, p. 580).
[15.] Titius, Observationum ratiocinantium.
[16.] Grotius’s discussion in Rights of War and Peace, III.XIV, pp. 661 ff., does not pertain specifically to Christians captured in battle. It is a plea for moderation with respect to all prisoners of war.
[17.] Legacies, as well as various other types of transaction, in favor of an “uncertain person” (incertae personae), were generally held to be invalid in Roman law (see, e.g., Justinian, Institutes, II.20.25).
[18.] acceptilatio: a formal release from an agreement.
[19.] Barbeyrac was of the opinion that agreements made with an enemy continue to oblige a nation until the terms of the agreement have expired or the enemy’s violation of the agreement dispenses us from the obligation to adhere to it. Failure to honor such agreements must lead to perpetual jealousies and endless war (Of the Law of Nature and Nations, VIII.VII.2, n. 1, p. 853).
[20.] Magnus Maximus, Roman emperor a.d. 383–88. During his command of the Roman forces in Britain, he fought successfully against Picts and Scots before being acclaimed as emperor by his troops. Maximus is said to have married a British chieftain’s daughter and became a figure of legend in post-Roman Britain. It is noteworthy that Carmichael should have concluded his work with an affirmation of the continuity of the Scottish people, given his concern throughout to demonstrate that the consent of the people is the source of the legitimacy of the governments and that peoples have a right to resist tyranny and refuse consent to a conqueror. Barbeyrac accepted Carmichael’s authority on the subject of the Scottish people (Of the Law of Nature and Nations, VIII.XII.9, n. 2, p. 882): “A very learned Scotchman (un habile Ecossois) … says, that the Sequel plainly shewed, the Scotch were never so totally defeated, but they could recover themselves.”