Front Page Titles (by Subject) PART IV: In which are considered the different rights of sovereignty with respect to foreign states; the right of war, and every thing relating to it; public treaties, and the right of ambassadors. - The Principles of Natural and Politic Law
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PART IV: In which are considered the different rights of sovereignty with respect to foreign states; the right of war, and every thing relating to it; public treaties, and the right of ambassadors. - Jean-Jacques Burlamaqui, The Principles of Natural and Politic Law 
The Principles of Natural and Politic Law, trans. Thomas Nugent, ed. and with an Introduction by Peter Korkman (Indianpolis: Liberty Fund, 2006).
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In which are considered the different rights of sovereignty with respect to foreign states; the right of war, and every thing relating to it; public treaties, and the right of ambassadors.
Of war in general, and first of the right of the sovereign, in this respect, over his subjects.
I. Whatever has been hitherto said of the essential parts of sovereignty, properly and directly regards the internal administration of the state. But as the happiness and prosperity of a nation demands not only that order and peace should be maintained at home, but also that the state should be protected from the insults of enemies abroad, and obtain all the advan-<221>tages it can from other nations; we shall proceed to examine those parts of sovereignty which directly regard the safety and external advantages of the state, and discuss the most essential questions relating to this subject.
II. To trace things from their original, we must first observe, that mankind being divided into several societies called states or nations, and those political bodies forming a kind of society among themselves, are also subjected to those primitive and general laws, which God has given to all mankind, and consequently they are obliged to practise certain duties towards each other.
III. It is the system or assemblage of those laws that is properly called the law of nations: and these are no more than the laws of nature, which men, considered as members of society, in general, ought to practise towards each other;1 or, in other words, the law of nations is no more than the general law of sociability, applied not to individuals composing a society, but to men, as forming different bodies called states or nations.
IV. The natural state of nations, with respect to each other, is certainly that of society and peace. Such is the natural and primitive state of one man with respect to another; and whatever alteration mankind may have made in regard to their original state, they cannot, without violating their duty, break in upon that state of peace and society, in which nature has placed them, and which, by her<222> laws, she has so strongly recommended to their observance.
V. Hence proceed several maxims of the law of nations; for example, that all states ought to look upon themselves as naturally equal and independent, and to treat each other as such on all occasions: likewise, that they ought to do no injury to any other, but, on the contrary, repair that which they may have committed. Hence also arises their right of endeavouring to provide for their safety and happiness, and of employing force and arms against those who declare themselves their enemies. Fidelity in treaties and alliances, and the respect due to ambassadors, are derived from the same principle. This is the idea we ought to form of the law of nations in general.
VI. We do not here propose to enter into all the political questions which may be started concerning the law of nations; we shall only examine two following articles, which, being the most considerable, include almost all the rest, I mean the right of war, that of treaties and alliances, and that of ambassadors.
VII. The subject of the right of war being finally important and extensive, merits to be treated with great exactness. We have already observed, that it is a fundamental maxim of the law of nature and nations, that individuals and states ought to live in a state of union and society, that they should not injure each other, but, on the con-<223>trary, they should mutually exercise the duties of humanity.
VIII. Whenever men practise these duties, they are said to be in a state of peace. This state is certainly the most agreeable to our nature, as well as the most capable of promoting happiness;2 and indeed the law of nature was intended chiefly to establish and preserve it.
IX. The state opposite to that of union and peace, is what we call war, which, in the most general sense, is no more than the state of those who try to determine their differences by the ways of force. I say, this is the most general sense, for, in a more limited signification, common use has restrained the word war to that carried on between sovereign powers.*
X. Though a state of peace and mutual benevolence is certainly most natural to man, and most agreeable to the laws which ought to be his guide, war is nevertheless permitted in certain circumstances, and sometimes necessary both for individuals and nations. This we have sufficiently shewn in the second part of this work, by establishing the rights with which nature has invested mankind for their own preservation, and the means they may lawfully employ for attaining that end. The principles of this kind, which we have established with respect to particulars, equally, and even for stronger reasons, are applicable to nations.<224>
XI. The law of God no less enjoins a whole nation to take care of their preservation, than it does private men. It is therefore just that they should3 employ force against those, who, declaring themselves their enemies, violate the law of sociability towards them, refuse them their due, seek to deprive them of their advantages, and even to destroy them. It is therefore for the good of society, that people should be able to repress the malice and efforts of those who subvert the foundations of it; otherwise the human species would become the victims of robbery and licentiousness: for the right of making war is, properly speaking, the most powerful means of maintaining peace.4
XII. Hence it is certain that the sovereign, in whose hands the interest of the whole society is lodged, has a right to make war: but if it be so, we must of course allow him the right of employing the several means necessary for that end. In a word, we must grant him the power of levying troops, and obliging them to perform the most dangerous duties even at the peril of their lives. And this is one branch of the right of life and death which manifestly belongs to the sovereign.
XIII. But as the strength and valour of troops depend, in great measure, on their being well disciplined, the sovereign ought, even in times of peace, to train the subjects up to martial exercises, to the end that they may, when occasion requires, be more able to sustain the fatigues, and perform the different duties of war.<225>
XIV. The obligation, under which subjects are in this respect, is so rigorous and strong, that, strictly speaking, no man can be exempted from taking up arms when his country calls upon him for assistance; and his refusal would be a just reason not to tolerate such a person any longer in the society. If in most governments there are some subjects exempted from military exercises, this immunity is not a privilege that belongs to them by right; it is only a toleration that has no force, but when there are troops sufficient for the defence of the commonwealth, and the persons to whom it is granted follow some other useful and necessary employment. Excepting this case, in time of need all the members of the state ought to take the field, and none can be lawfully exempted.5
XV. In consequence of these principles, military discipline should be very rigorous; the smallest neglect, or the least fault, is often of the last importance, and for that reason may be severely punished. Other judges make some allowance for the weakness of human nature, or the violence of passions; but in a council of war, there is not so much indulgence; death is often inflicted on a soldier, whom the dread of that very evil has induced to quit his post.
XVI. It is therefore the duty of those who are once enlisted, to maintain the post where the general has placed them, and to fight bravely, even though they run a risque of losing their lives. To conquer or die, is the law of such engagements; and it is certainly much better to lose one’s life gloriously, by endeavouring to destroy that of the enemy, than to<226> die in a cowardly manner. Hence some judgment may be formed of what we ought to think of those captains of ships, who, by the orders of their superior, blow themselves up into the air, rather than fall into the hands of the enemy. Suppose the number of ships equal on both sides, if one of our vessels is taken, the enemy will have two more than we; whereas if one of ours is sunk, they will have but one more; and if the vessel, which wants to take ours, sinks with it, which often happens, the forces will remain equal.6
XVII. In regard to the question, whether subjects are obliged to take up arms, and serve in an unjust war, we must judge of it by the principles already established at the end of the first chapter of the third part, which treats of the legislative power.
XVIII. These are the obligations of subjects with respect to war and to the defence of government; but this part of the supreme power being of great importance, the utmost precaution is required in the sovereign to exercise it in such a manner as may prove advantageous to the state. We shall here point out the principal maxims on this article of politics.
XIX. First then it is evident, that the force of a state, with respect to war, consists chiefly in the number of its inhabitants; sovereigns therefore ought to neglect nothing that can either support or augment the number of them.
XX. Among the other means, which may be<227> used for this purpose, there are three of great efficacy. The first is, easily to receive all strangers of a good character, who want to settle among us; to let them taste the sweets of government; and to make them share the advantages of civil liberty. Thus the state is filled with subjects, who bring with them the arts, commerce, and riches; and among whom we may, in time of need, find a considerable number of good soldiers.7
XXI. Another thing, conducive to the same end, is to favour and encourage marriages, which are the pledges of the state; and to make good laws for this purpose. The mildness of the government may, among other things, greatly contribute to incline the subjects to join together in wedlock. People loaded with taxes, who can hardly, by their labour, find wherewithal to supply the wants of life and the public charges, are not inclined to marry, lest their children should starve for hunger.8
XXII. Lastly, another means, very proper for maintaining and augmenting the number of inhabitants, is liberty of conscience. Religion is one of the greatest advantages of mankind, and all men view it in that light. Every thing tending to deprive them of this liberty, appears insupportable. They cannot easily accustom themselves to a government which tyrannizes over them in this article. France, Spain and Holland, present us with sensible proofs of the truth of these observations. Persecutions have deprived the first of a great part of her inhabitants; by which means she has been considerably weakened. The<228> second is almost unpeopled; and this depopulation is occasioned by the barbarous and tyrannical establishment called the Inquisition, an establishment equally affronting to God and pernicious to human society, and which has made a kind of desert of one of the finest countries in Europe. The third, in consequence of an entire liberty of conscience, which she offers to all the world, is considerably improved even amidst wars and disasters. She has raised herself, as it were, on the ruin of other nations, and by the number of her inhabitants, who have brought power, commerce and riches into her bosom, she enjoys a high degree of credit and prosperity.9
XXIII. The great number of inhabitants is therefore the principal strength of a country. But, for this end, the subjects must also be inured betimes to labour, and trained to virtue. Luxury, effeminacy, and pleasure, impair the body and enervate the mind. A prince therefore, who desires to put the military establishment on a proper footing, ought to take particular care of the education of youth, so as to procure his subjects the means of forming themselves, by a strict discipline, to bodily exercises, and to prevent luxury and pleasures from debauching their manners, or weakening their courage.
XXIV. Lastly, one of the most effectual means of having good troops, is to make them observe the military order and discipline with all possible care and exactness; to take particular care that the soldiers be punctually paid; to see that the sick be properly looked after, and to furnish them with the assistance<229> they stand in need of; lastly, to preserve among them a knowledge of religion and of the duties it prescribes, by procuring them the means of instruction. These are the principal maxims which good policy suggests to sovereigns, by means of which they may reasonably hope always to find good troops among their subjects, such as shall be disposed to spill the last drop of their blood in defence of their country.
Of the causes of war.
I. If war be sometimes lawful, and even necessary, as we have already demonstrated; this is to be understood when it is undertaken only for just reasons, and on condition that the prince, who undertakes it, proposes, by that method, to obtain a solid and lasting peace. A war may therefore be either just or unjust, according to the cause which has produced it.
II. A war is just if undertaken for just reasons; and unjust if it be entered into without a cause, or at least without a just and sufficient motive.
III. To illustrate the matter, we may, with Grotius, distinguish between the justifying reasons, and the motives of the war. The former are those which render, or seem to render, the war just with respect to the enemy, so that in taking up arms against him we do not think we do him injustice.<230> The latter are the views of interest which determine a prince to come to an open rupture. Thus in the war of Alexander against Darius, the justifying reason of the former was, to revenge the injuries which the Greeks had received from the Persians. The motives were, the ambition, vanity, and avarice of that conqueror, who took up arms the more chearfully, as the expeditions of Xenophon and Agesilaus made him conceive great hopes of success. The justifying reason of the second Punic war was, a dispute about the city of Saguntum. The motive was, an old grudge entertained by the Carthaginians against the Romans for the hard terms they were obliged to submit to when reduced to a low condition, and the encouragement given them by the success of their arms in Spain.1
IV. In a war, perfectly just, the justifying reasons must not only be lawful, but also be blended with the motive; that is, we must never undertake a war but from the necessity of defending ourselves against an insult, of recovering our undoubted right, or of obtaining satisfaction for a manifest injury.
V. Thus a war may be vicious or unjust, with respect to the causes, four different ways.
1°. When we undertake it without any just reason, or so much as an apparent motive of advantage, but only from a fierce and brutal fury, which delights in blood and slaughter. But it may be doubted, whether we can find an example of so barbarous a war.2 <231>
VI. 2°. When we attack others only for our own interest, without their having done us any injury; that is, when we have no justifying causes: and these wars are, with respect to the aggressor, downright robberies.
VII. 3°. When we have some motives founded on justifying causes, but which have still only an apparent equity, and when well examined, are found at the bottom to be unlawful.
VIII. 4°. Lastly, we may say that a war is also unjust, when, though we have good justifying reasons, yet we undertake it from other motives, which have no relation to the injury received; as for instance, through vain glory, or the desire of extending our dominions, &c.
IX. Of these four sorts of war, the undertaking of which includes injustice, the third and last are very common, for there are few nations so barbarous as to take up arms without alledging some sort of justifying reasons. It is not difficult to discover the injustice of the third; as to the fourth, though perhaps very common, it is not so much unjust in itself, as with respect to the view and design of the person who undertakes it. But it is very difficult to convince him of it, the motives being generally impenetrable, or at least most princes taking great care to conceal them.* <232>
X. From the principles here established we may conclude, that every just war must be made, either to defend ourselves and our property against those who endeavour to injure us by assaulting our persons, and by taking away or ruining our estates; or to constrain others to yield up to us what they ought to do, when we have a perfect right to require it of them; or lastly, to obtain satisfaction for the damages we have injuriously sustained, and to force those who did the injury to give security for their good behaviour.
XI. From hence we easily conceive what the causes of war may be. But to illustrate the subject still further, we shall give some examples of the principal unjust causes of war.
1°. Thus, for example, to have a just reason for war, it is not sufficient that we are afraid of the growing power of a neighbour. All we can do, in those circumstances, is innocently to try to obtain real caution, that he will attempt nothing against us; and to put ourselves in a posture of defence. But acts of hostility are not permitted, except when necessary, and they are never necessary so long as we are not morally certain that the neighbour we dread has not only the power, but also the inclination to attack us. We cannot, for instance, justly declare war against a neighbour, purely because he orders citadels or fortifications to be erected, which he may some time or other employ to our prejudice.3
XII. 2°. Neither does utility alone give the same right as necessity, nor is it sufficient to render<233> a war lawful. Thus, for example, we are not allowed to take up arms with a view to make ourselves masters of a place which lies conveniently for us, and is proper to cover our frontiers.4
XIII. 3°. We must say the same of the desire of changing our former settlements, and of removing from marshes and deserts to a more fertile soil.
4°. Nor is it less unjust to invade the rights and liberty of a people, under a pretext of their not being so polished in their manners, or of such quick understanding as ourselves. It was therefore unjust in the Greeks to treat those, whom they called Barbarians, as their natural enemies, on account of the diversity of their manners, and perhaps because they did not appear to be so ingenious as themselves.5
XIV. 5°. It would also be an unjust war to take up arms against a nation, in order to bring them under subjection, under pretence of its being their interest to be governed by us. Though a thing may be advantageous to a person, yet this does not give us a right to compel him to it. Whoever has the use of reason, ought to have the liberty of choosing what he thinks advantageous to himself.6
XV. We must also observe, that the duties which nations ought to practise towards each other, are not all equally obligatory, and that their deficiency in this respect does not always lay a foundation for a just war. Among nations, as well as individuals, there are duties attended with a rigorous and perfect obligation, the violation of which implies an injury<234> properly so called; and duties of an imperfect obligation, which give to another only an imperfect right. And as we cannot, in a dispute between individuals, have recourse to courts of law to recover what in this second manner is our due; so neither can we, in contests between different powers, constrain them by force of arms.
XVI. We must however except from this rule, the cases of necessity in which the imperfect is changed into the perfect right; so that, in those cases, the refusal of him, who will not give us our due, furnishes us with a just reason for war. But every war, undertaken on account of the refusal of what a man is not obliged by the laws of humanity to grant, is unjust.7
XVII. To apply these principles, we shall give some examples. The right of passing over the lands of another is really founded on humanity, when we design to use that permission only on a lawful account; as when people, expelled their own country, want to settle elsewhere; or when, in the prosecution of a just war, it is necessary to pass through the territories of a neutral nation, &c. But this is only an office of humanity which is not due to another in virtue of a perfect and rigorous right, and the refusal of it does not authorise a nation to challenge it in a forcible manner.8
XVIII. Grotius however, examining this question, pretends, “that we are not only obliged to grant a passage over our lands to a small number of men<235> unarmed, and from whom we have consequently nothing to fear; but moreover that we cannot refuse it to a large army, notwithstanding the just apprehension we may have that this passage will do us a considerable injury, which is likely to arise either from that army itself, or from those against whom it marches: provided,” continues he, “1°. that this passage is asked on a just account. 2°. That it is asked before an attempt is made to pass by force.”
XIX. This author then pretends, that, under those circumstances, the refusal authorises us to have recourse to arms, and that we may lawfully procure by force, what we could not obtain by favour, even though the passage may be had elsewhere by taking a larger circuit. He adds, “That the suspicion of danger from the passing of a great number of armed men, is not a sufficient reason to refuse it, because good precautions may be taken against it. Neither is the fear of provoking that prince, against whom the other marches his army, a sufficient reason for refusing him passage, if the latter has a just reason for undertaking the war.”
XX. Grotius founds his opinion on this reason, that the establishment of property was originally made with the tacit reservation of the right of using the property of another in time of need, so far as it can be done without injuring the owner.
XXI. But I cannot embrace the opinion of this celebrated writer; for, 1°. whatever may be said, it<236> is certain that the right of passing through the territories of another is not a perfect right, the execution of which can be rigorously demanded. If a private person is not obliged to suffer another to pass through his ground, much less is a nation obliged to grant a passage to a foreign army, without any compact or concession intervening.
XXII. 2°. The great inconveniencies which may follow such a permission, authorise this refusal. By granting such a passage, we run a risque of making our own country the seat of war. Besides, if they, to whom we grant the passage, are repulsed and vanquished, let the reasons they had for making war be ever so just, yet will not the enemy revenge himself upon us who did not hinder those troops from invading him? But farther, suppose that we live in friendship with both the princes who are at war, we cannot favour one to the prejudice of the other, without giving this other a sufficient reason to look upon us as enemies, and as defective in that part of our duty which we owe to our neighbours. It would be in vain, on this occasion, to distinguish between a just and an unjust war, pretending that the latter gives a right of refusing the passage, but that the former obliges us to grant it. This distinction does not remove the difficulty; for, besides that it is not always easy to decide whether a war be just or unjust, it is a piece of rashness to thrust in our arbitration between two armed parties, and to intermeddle with their differences.9
XXIII. 3°. But is there nothing to fear from the<237> troops to whom the passage is granted? The abettors of the contrary opinion agree there is, for which reason they allow that many precautions ought to be observed. But whatever precautions we may take, none of them can secure us against all events; and some evils and losses are irreparable. Men that are always in arms are easily tempted to abuse them, and to commit outrages; especially if they be numerous, and find an opportunity of making a considerable booty. How often have we seen foreign armies ravage and appropriate to themselves the estates of a people who have called them to their assistance? Nor have the most solemn treaties and oaths been able to deter them from this black perfidiousness.* What then may we expect from those who are under no such strict engagement?
XXIV. 4°. Another observation we may make, which is of great use in politics, that almost all states have this in common, that the further we advance into the heart of a country, the weaker we find it. The Carthaginians, otherwise invincible, were vanquished near Carthage by Agathocles and Scipio. Hannibal affirmed, that the Romans could not be conquered except in Italy. It is therefore dangerous to lay open this secret to a multitude of foreigners, who, having arms at hand, may take advantage of our weakness, and make us repent our imprudence.
XXV. 5°. To this we must add, that in every state there are almost always mutinous and turbulent spirits, who are ready to stir up strangers either against their<238> fellow-citizens, their sovereign, or their neighbours. These reasons sufficiently prove, that all the precautions which can be taken cannot secure us from danger.
6°. Lastly, we may add the example of a great many nations, who have been very ill requited for letting foreign troops pass through their country.
XXVI. We shall finish the examination of this question by making two remarks. The first is, that it is evident from the whole of what has been said, that this is a matter of prudence; and that though we are not obliged to grant a passage to foreign troops, and the safest way is to refuse it, yet when we are not strong enough to resist those who want to pass at any rate, and by resisting we must involve ourselves in a troublesome war, we ought certainly to grant a passage; and the necessity to which we are reduced, is a sufficient justification to the prince whose territories those troops are going to invade.10
XXVII. My second remark is, that if we suppose, on one hand, that the war which the prince, who demands a passage through our country, makes, is just and necessary, and, on the other, that we have nothing to fear either from him that is to pass, or him against whom he marches; we are then indispensably obliged to grant a passage. For if the law of nature obliges every man to assist those whom he sees manifestly oppressed, when he can do it without danger and with hopes of success, much less ought he to be a hindrance to such as undertake their own defence.<239>
XXVIII. By following the principles here established, we may judge of the right of transporting merchandizes through the territories of another. This is also an imperfect right, and a duty of humanity, which obliges us to grant it to others; but the obligation is not rigorous, and the refusal cannot be a just reason for war.11
XXIX. Truly speaking, the laws of humanity indispensably oblige us to grant a passage to such foreign commodities as are absolutely necessary for life, which our neighbours cannot procure by themselves, and with which we are not able to furnish them. But, except in this case, we may have good reasons for hindering foreign commodities from passing through our country. Too great a resort of strangers is sometimes dangerous to a state; and besides, why should not a sovereign procure to his own subjects that profit, which would otherwise be made by foreigners, by means of the passage granted them?
XXX. It is not however contrary to humanity to require toll or custom for foreign commodities to which a passage is granted. This is a just reimbursement for the expences the sovereign is obliged to be at in repairing the high roads, bridges, harbours, &c.
XXXI. We must reason in the same manner in regard to commerce in general between different states. The same may be said of the right of being supplied with wives by our neighbours; a refusal on their side, though there be great plenty of women among them,12 does not authorize us to declare war.<240>
XXXII. We shall here subjoin something concerning wars undertaken on account of religion. The law of nature, which permits a man to defend his life, his substance, and all the other advantages which he enjoys, against the attacks of an unjust aggressor, certainly grants him the liberty also of defending himself against those who would, as it were by force, deprive him of his religion, by hindering him to profess that which he thinks the best, or by constraining him to embrace that which he thinks to be false.13
XXXIII. In a word, religion is one of the greatest blessings man can enjoy, and includes his most essential interests. Whoever opposes him in this respect, declares himself his enemy; and consequently he may justly use forcible methods to repel the injury, and to secure himself against the evil intended him. It is therefore lawful, and even just, to take up arms, when we are attacked for the cause of religion.14
XXXIV. But though we are allowed to defend ourselves in the cause of religion, we are not permitted to make war in order to propagate that which we profess, and to constrain those who have some principle or practice different from ours. The one is a necessary consequence of the other. It is not lawful to attack him who has a right to defend himself. If the defensive war is just, the offensive must needs be criminal. The very nature of religion does not permit that violent means should be used for its propagation; it consists in the internal persuasion. The right of mankind, in regard to the propagation of religion, is to inform and instruct those who are<241> in an error, and to use the soft and gentle methods of conviction. Men must be persuaded, and not compelled. To act otherwise, is to commit a robbery on them; a robbery so much the more criminal, as those who commit it endeavour to justify themselves by sacred authority. There is therefore no less folly, than impiety, in such a conduct.
XXXV. In particular, nothing is more contrary to the spirit of Christianity, than to employ the force of arms for the propagation of our holy religion. Christ, our divine master, instructed mankind, but never treated them with violence.15 The apostles followed his example; and the enumerations which St. Paul makes of the arms he employed for the conversion of mankind, is an excellent lesson to Christians.*
XXXVI. So far is a simple difference of opinion, in matters of religion, from being a just reason for pursuing, by force of arms, or disturbing in the least, those whom we think in an error; that, on the contrary, such as act in this manner, furnish others with a just reason of making war against them, and of defending those whom they unjustly oppress. Upon which occasion the following question occurs: Whether protestant princes may not, with a good conscience, enter into a confederacy to destroy the Inquisition, and oblige the powers, who suffer it in their dominions, to disarm that cabal, under which Christianity has so long groaned, and which, under a false pretence to zeal and piety, exercises a tyranny most horrible in itself,<242> and most contrary to human nature? Be that as it may, it is at least certain, that never would any hero have subdued monsters more furious and destructive to mankind, than he who could accomplish the design of purging the earth of these wicked men, who so impudently and cruelly abuse the specious shew of religion, only to procure wherewith to live in luxury and idleness, and to make both princes and subjects dependent on them.
XXXVII. These are the principal remarks which occur on the causes of war. To which let us add, that as we ought not to make war, which of itself is a very great evil, but to obtain a solid peace, it is absolutely necessary to consult the rules of prudence before we undertake it, however just it may otherwise appear. We must, above all things, exactly weigh the good or evil, which we may bring upon ourselves by it: For if in making war, there is reason to fear that we shall draw greater evils on ourselves, or those that belong to us, than the good we can propose from it; it is better to put up with the injury, than to expose ourselves to more considerable evils, than that for which we seek redress by arms.16
XXXVIII. In the circumstances here mentioned we may lawfully make war, not only for ourselves, but also for others; provided that he, in whose favour we engage, has just reason to take up arms, and that we are likewise under some particular tie or obligation to him, which authorises us to treat as enemies those who have done us no injury.17 <243>
XXXIX. Now among those, whom we may and ought to defend, we must give the first place to such as depend on the defender, that is, to the subjects of the state; for it is principally with this view of protection that men, before independent, incorporated themselves into civil society. Thus the Gibeonites having submitted themselves to the government of the Israelites, the latter took up arms on their account, under the command of Joshua. The Romans also proceeded in the same manner. But sovereigns in these cases ought to observe the maxim we have established in sect. 37. They ought to beware in taking up arms for some of their subjects, not to bring a greater inconveniency on the body of the state. The duty of the sovereign regards first and principally the interest of the whole, rather than that of a part; and the greater the part is, the nearer it approaches to the whole.18
XL. 2°. Next to subjects come our allies, whom we are expressly engaged by treaty to assist in time of need; and this, whether they have put themselves entirely under our protection, and so depend upon it; or whether assistance be agreed upon for mutual security.
XLI. But the war must be justly undertaken by our ally; for we cannot innocently engage to help any one in a war, which is manifestly unjust. Let us add here, that we may, even without prejudice to the treaty, defend our own subjects preferably to our allies, when there is no possibility of assisting<244> them both at the same time; for the engagements of a government to its subjects always supersede those into which it enters with strangers.
XLII. As to what Grotius says, that we are not obliged to assist an ally, when there is no hope of success; it is to be understood in this manner. If we see that our united forces are not sufficient to oppose the enemy, and that our ally, though able to treat with him on tolerable terms, is yet obstinately bent to expose himself to certain ruin; we are not obliged, by the treaty of alliance, to join with him in so extravagant and desperate an attempt. But then it is also to be considered, that alliances would become useless, if, in virtue of this union, we were not obliged to expose ourselves to some danger, or to sustain some loss in the defence of an ally.
XLIII. Here it may be enquired; when several of our allies want assistance, which ought to be helped first, and preferably to the rest? Grotius answers, that when two allies unjustly make war upon each other, we ought to succour neither of them; but if the cause of one ally be just, we must not only assist him against strangers, but also against another of our allies, unless there be some particular clause in a treaty, which does not permit us to defend the former against the latter, even though the latter has committed the injury. In fine, that if several of our allies enter into a league against a common foe, or make war separately against particular enemies, we must assist them all equally,<245> and according to treaty; but when there is no possibility of assisting them all at once, we must give the preference to the oldest confederate.19
XLIV. 3°. Friends, or those with whom we are united by particular ties of kindness and affection, hold the third rank. For though we have not promised them assistance, determined by a formal treaty; yet the nature of friendship itself implies a mutual engagement to help each other, so far as the stricter obligations the friends are under will permit; and the concern for each other’s safety ought to be much stronger, than that which is demanded by the simple connection of humanity.20
XLV. I say that we may take up arms for our friends, who are engaged in a just war; for we are not under a strict obligation to assist them: and this condition ought to be understood, if we can do it easily, and without any great inconveniency to ourselves.
XLVI. 4°. In fine, we may affirm that the single relation, in which all mankind stand to each other, in consequence of their common nature and society, and which forms the most extensive connection, is sufficient to authorise us in assisting those who are unjustly oppressed; at least if the injustice be considerable, and manifest, and the party injured call us to his assistance; so that we act rather in his name, than in our own. But even here we must make this remark, that we have a right to succour the distressed purely from humanity, but that<246> we are not under a strict obligation of doing it. It is a duty of imperfect obligation, which binds us only so far as we can practise it, without bringing a considerable inconveniency upon ourselves; for all circumstances being equal, we may, and even ought to prefer our own preservation to that of another.
XLVII. It is another question, whether we can undertake a war in defence of the subjects of a foreign prince, against his invasions and oppressions, merely from the principle of humanity? I answer, that this is permitted only in cases where the tyranny is risen to such a height, that the subjects themselves may lawfully take up arms, to shake off the yoke of the tyrant, according to the principles already established.21
XLVIII. It is true, that since the institution of civil societies, the sovereign has acquired a peculiar right over his subjects, in virtue of which he can punish them, and no other power has any business to interfere. But it is no less certain, that this right hath its bounds, and that it cannot be lawfully exercised, except when the subjects are really culpable, or at least when their innocence is dubious. Then the presumption ought to be in favour of the sovereign, and a foreign power has no right to intermeddle with what passes in another state.
XLIX. But if the tyranny be arrived at its greatest height, if the oppression be manifest, as when a<247> Busiris or Phalaris oppress their subjects in so cruel a manner, as must be condemned by every reasonable man living; we cannot refuse the subjects, thus oppressed, the protection of the laws of society. Every man, as such, has a right to claim the assistance of other men when he is really in necessity; and every one is obliged to give it him, when he can, by the laws of humanity. Now it is certain, that we neither do, nor can renounce those laws, by entering into society, which could never have been established to the prejudice of human nature: though we may be justly supposed to have engaged, not to implore a foreign aid for slight injuries, or even for great ones, which affect only a few persons.
But when all the subjects, or a considerable part of them, groan under the oppression of a tyrant, the subjects, on the one hand, re-enter into the several rights of natural liberty, which authorises them to seek assistance wherever they can find it; and, on the other hand, those who are in a condition of giving it them, without any considerable damage to themselves, not only may, but ought to do all they can to deliver the oppressed; for the single consideration of pity and humanity.22
L. It appears indeed, from ancient and modern history, that the desire of invading the states of others is often covered by those pretexts; but the bad use of a thing, does not hinder it from being just. Pirates navigate the seas, and robbers wear swords, as well as other people.<248>
Of the different kinds of war.
I. Besides the division above-mentioned of war into just and unjust, there are several others, which it is proper now to consider. And first, war is distinguished into offensive and defensive.
II. Defensive wars are those undertaken for the defence of our persons, or the preservation of our properties. Offensive wars are those which are made to constrain others to give us our due, in virtue of a perfect right we have to exact it of them; or to obtain satisfaction for a damage unjustly done us, and to force them to give caution for the future.1
III. 1°. We must therefore take care not to confound this with the former distinction; as if every defensive war were just, and, on the contrary, every offensive war unjust. It is the present custom to excuse the most unjust wars, by saying they are purely defensive. Some people think that all unjust wars ought to be called offensive, which is not true; for if some offensive wars be just, as there is no doubt of it, there are also defensive wars unjust; as when we defend ourselves against a prince who has had sufficient provocation to attack us.2
IV. 2°. Neither are we to believe, that he who first injures another, begins by that an offensive war, and that the other, who demands satisfaction for the<249> injury, is always upon the defensive. There are a great many unjust acts which may kindle a war, and yet are not the war; as the ill treatment of a prince’s ambassador, the plundering of his subjects, &c. If therefore we take up arms to revenge such an unjust act, we commence an offensive, but a just war; while the prince who has done the injury, and will not give satisfaction, makes a defensive, but an unjust war. An offensive war is therefore unjust only, when it is undertaken without a lawful cause; and then the defensive war, which on other occasions might be unjust, becomes just.
V. We must therefore affirm, in general, that the first who takes up arms, whether justly or unjustly, commences an offensive war; and he who opposes him, whether with or without a reason, begins a defensive war. Those who look upon the word offensive war to be an odious term, as always implying something unjust; and who, on the contrary, consider a defensive war as inseparable from equity, confound ideas, and perplex a thing, which of itself seems to be sufficiently clear. It is with princes as with private persons. The plaintiff who commences a suit at law, is sometimes in the wrong, and sometimes in the right. It is the same with the defendant. It is wrong to refuse to pay a sum which is justly due; and it is right to forbear paying what we do not owe.
VI. In the third place, Grotius distinguishes war into private, public, and mix’d.3Public war he calls that which is made on both sides by the authority<250> of the civil power: Private war, that which is made between private persons, without any public authority: and, lastly, mix’d war, that which, on one side, is carried on by public authority, and, on the other, by private persons.
VII. We may observe concerning this division, that if we take the word war in the most general and extensive sense, and understand by it all taking up arms with a view to decide a quarrel, in contradistinction to the way of deciding a difference by recourse to a common judge, then this distinction may be admitted; but custom seems to explode it, and has restrained the signification of the word war to that carried on between sovereign powers. In civil society, private persons have not a right to make war; and as for the state of nature, we have already treated of the right which men have in that state to defend and preserve their persons and properties; so that as we are here treating only of the right of sovereigns, with regard to each other, it is properly public, and not private war, that falls under our present consideration.
VIII. 4°. War is also distinguished into solemn according to the laws of nations, and not solemn. To render a war solemn, two things are requisite; the first, that it be made by the authority of the sovereign; the second, that it be accompanied with certain formalities, as a formal declaration, &c. but of this we shall treat more fully in its proper place. War not solemn, is that which is made either with-<251>out a formal declaration, or against mere private persons. We shall here only hint at this division, deferring a more particular examination of it, and an enquiry into its effects, till we come to treat of the formalities which usually precede war.4
IX. But a question is moved, relating to this subject, which is, whether a magistrate, properly so called, and as such, has a power of making war of his own accord? Grotius answers, that judging independently of the civil laws, every magistrate seems to have as much right, in case of resistance, to take up arms in order to exercise his jurisdiction, and to see his commands executed, as to defend the people intrusted to his care. Puffendorf, on the contrary, takes the negative, and passes censure on the opinion of Grotius.
X. But it is easy to reconcile these two authors, the dispute between them being merely about words. Grotius fixes a more vague and general idea to the term war:* according to him, therefore, when a subordinate magistrate takes up arms to maintain his authority, and to reduce those to reason who refuse to submit to him, he is supposed to act with the approbation of the sovereign; who, by entrusting him with a share in the government of the state, has at the same time invested him with the power necessary to exercise it. And thus the question is only, whether every magistrate, as such, has need, on this occasion, of an express order from the sovereign; so that the constitution of civil societies in general re-<252>quire it, independently of the laws of each particular state.5
XI. Now if a magistrate can have recourse to arms for the reduction of one person, of two, ten, or twenty, who either refuse to obey him, or attempt to hinder the exercise of his jurisdiction, why may he not use the same means against fifty, a hundred, a thousand? &c. The greater the number of the disobedient, the more he will have occasion for force to overcome their resistance. Now this is what Grotius includes under the term war.
XII. Puffendorf agrees to this in the main; but he pretends that this coercive power, which belongs to a magistrate over disobedient subjects, is not a right of war; war seeming to be intirely between equals, or at least such as pretend to equality. The idea of Puffendorf ’s is certainly more regular, and agreeable to custom; but it is evident, that the difference between him and Grotius consists only in the greater or lesser extent which each of them gives to the word war.
XIII. If it be objected, that it is dangerous to leave so much power to a subordinate magistrate; this may be true: but then it proves only that the prudence of legislators requires they should set bounds in this respect to the power of magistrates, in order to prevent an inconveniency which should otherwise arise from the institution of magistracy.<253>
XIV. But to judge of the power of the magistrates, or of generals and leaders, in respect to war, properly so called, and which is carried on against a foreign enemy, we need only to attend to their commissions; for it is evident that they cannot lawfully undertake any act of hostility of their own head, and without a formal order of the sovereign, at least reasonably presumed, in consequence of particular circumstances.6
XV. Thus, for example, a general sent upon an expedition with an unlimited authority, may act against the enemy offensively, as well as defensively, and in such a manner as he shall judge most advantageous; but he can neither levy a new war, nor make peace of his own head. But if his power be limited, he ought never to pass the bounds prescribed, unless he is unavoidably reduced to it by the necessity of self-defence; for whatever he does in that case, is supposed to be with the consent and approbation of the sovereign. Thus, if an admiral has orders to be upon the defensive, he may, notwithstanding such a restraint, break in upon the enemy’s fleet, and sink and burn as many of their ships as he can, if they come to attack him: all that he is forbidden, is to challenge the enemy first.
XVI. In general, the governors of provinces and cities, if they have troops under their command, may by their own authority defend themselves against an enemy who attacks them; but they ought not to carry the war into a foreign country, without an express order from their sovereign.<254>
XVII. It was in virtue of this privilege, arising from necessity, that Lucius Pinarius,* governor of Enna in Sicily for the Romans, upon certain information that the inhabitants designed to revolt to the Carthaginians, put them all to the sword, and thus preserved the place. But, except in the like case of necessity, the inhabitants of a town have no right to take up arms, in order to obtain satisfaction for those injuries which the prince neglects to revenge.
XVIII. A mere presumption of the will of the sovereign, would not even be sufficient to excuse a governor, or any other officer, who should undertake a war, except in case of necessity, without either a general or particular order. For it is not sufficient to know what part the sovereign would probably act, if he were consulted, in such a particular posture of affairs; but it should rather be considered in general, what it is probable a prince would desire should be done without consulting him, when the matter will bear some delay, and the affair is dubious. Now certainly sovereigns will never consent that their ministers should, whenever they think proper, undertake, without their order, a thing of such importance as an offensive war, which is the proper subject of the present inquiry.7
XIX. In these circumstances, whatever part the sovereign would have thought proper to act, if he had been consulted; and whatever success the war, undertaken without his orders, may have had; it is left to the sovereign whether he will ratify, or con-<255>demn the act of his minister. If he ratifies it, this approbation renders the war solemn, by reflecting back, as it were, an authority upon it, so that it obliges the whole commonwealth. But if the sovereign should condemn the act of the governor, the hostilities committed by the latter ought to pass for a sort of robbery, the fault of which by no means affects the state, provided the governor is delivered up, or punished according to the laws of the country, and proper satisfaction be made for the damages sustained.
XX. We may further observe, that in civil societies, when a particular member has done an injury to a stranger, the governor of the commonwealth is sometimes responsible for it, so that war may be declared against him on that account. But to ground this kind of imputation, we must necessarily suppose one of these two things, sufferance, or reception; viz. either that the sovereign has suffered this harm to be done to the stranger, or that he afforded a retreat to the criminal.8
XXI. In the former case it must be laid down as a maxim, that a sovereign, who knowing the crimes of his subjects, as for example, that they practise piracy on strangers; and being also able and obliged to hinder it, does not hinder it, renders himself criminal, because he has consented to the bad action, the commission of which he has permitted, and consequently furnished a just reason of war.<256>
XXII. The two conditions above-mentioned, I mean the knowledge and sufferance of the sovereign, are absolutely necessary, the one not being sufficient without the other, to communicate any share in the guilt. Now it is presumed, that a sovereign knows what his subjects openly and frequently commit; and as to his power of hindering the evil, this likewise is always presumed, unless the want of it be clearly proved.
XXIII. The other way, in which a sovereign renders himself guilty of the crime of another, is by allowing a retreat and admittance to the criminal, and skreening him from punishment. Puffendorf pretends, that if we are obliged to deliver up a criminal who takes shelter among us, it is rather in virtue of some treaty on this head, than in consequence of a common and indispensable obligation.
XXIV. But Puffendorf, I think, has, without sufficient reasons, abandoned the opinion of Grotius, which seems to be better founded. The principles of the latter, in regard to the present question, may be reduced to these following.
1°. Since the establishment of civil societies, the right of punishing public offences, which every person, if not chargeable himself with such a crime, had in the state of nature, has been transferred to the sovereign, so that the latter alone hath the privilege of punishing, as he thinks proper, those transgressions of his subjects, which properly interest the public.9 <257>
XXV. But this right of punishing crimes is not so exclusively theirs, but that either public bodies, or their governors, have a right to procure the punishment of them in the same manner, as the laws of particular countries allow private people the prosecution of crimes before the civil tribunal.
XXVI. 3°. This right is still stronger with respect to crimes, by which they are directly injured, and which they have a perfect right of punishing, for the support of their honour and10 safety. In such circumstances, the state, to which the criminal retires, ought not to obstruct the right that belongs to the other power.
XXVII. 4°. Now as one prince does not generally permit another to send armed men into his territories, upon the score of exacting punishment (for this would indeed be attended with terrible inconveniencies) it is reasonable11 the sovereign, in whose dominions the offender lives, or has taken shelter, should either punish the criminal according to his demerits, or deliver him up, to be punished at the discretion of the injured sovereign. This is that delivering up, of which we have so many examples in history.
XXVIII. 5°. The principles here laid down, concerning the obligation of punishing or delivering up, regard not only the criminals who have always been subjects of the government they now live under, but also those who, after the commission of a crime, have taken shelter in the country.<258>
XXIX. 6°. In fine, we must observe that the right of demanding fugitive delinquents to punishment, has not for some ages last past been insisted upon by sovereigns, in most parts of Europe, except in crimes against the state, or those of a very heinous nature. As to lesser crimes, they are connived at on both sides, unless it is otherwise agreed on by some particular treaty.
XXX. Besides the kinds of war, hitherto mentioned, we may also distinguish them into perfect and imperfect. A perfect war, is that which entirely interrupts the tranquillity of the state, and lays a foundation for all possible acts of hostility. An imperfect war, on the contrary, is that which does not intirely interrupt the peace, but only in certain particulars, the public tranquillity being in other respects undisturbed.
XXXI. This last species of war is generally called reprisals, of the nature of which we shall give here some account. By reprisals then we mean that imperfect kind of war, or those acts of hostility which sovereigns exercise against each other, or, with their consent, their subjects, by seizing the persons or effects of the subjects of a foreign commonwealth, that refuseth to do us justice; with a view to obtain security, and to recover our right, and in case of refusal, to do justice to ourselves, without any other interruption of the public tranquillity.12
XXXII. Grotius pretends, that reprisals are not founded on the law of nature and necessity, but<259> only on a kind of arbitrary law of nations, by which most of them have agreed, that the goods belonging to the subjects of a foreign state should be a pledge or security, as it were, for what that state, or the governor of it, might owe us, either directly, and in their own names, or by rendering themselves responsible for the actions of others, upon refusing to administer justice.
XXXIII. But this is far from being an arbitrary right, founded upon a pretended law of nations, whose existence we cannot prove, depending on the greater or less extent of custom no way binding in the nature of a law. The right we here speak of, is a consequence of the constitution of civil societies, and an application of the maxims of the law of nature to that constitution.13
XXXIV. During the independence of the state of nature, and before the institution of civil government, if a person had been injured, he could come upon those only who had done the wrong, or upon their accomplices; because there was then no tie between men, in virtue of which a person might be deemed to have consented, in some manner, to what others did even without his participation.
XXXV. But since civil societies have been formed, that is to say, communities, whose members are all united together for their common defence, there has necessarily arisen from thence a conjunction of interests and wills; which is the reason, that as the<260> society, or the powers which govern it, engage to defend each other against every insult; so each individual may be deemed to have engaged to answer for the conduct of the society, of which he is a member, or of the powers which govern it.
XXXVI. No human establishment can supersede the obligation of that general and inviolable law of nature, that the damage we have done to another should be repaired; except those, who are thereby injured, have manifestly renounced their right of demanding reparation. And when such establishments hinder those who are injured, from obtaining satisfaction so easily as they might without them, this difficulty must be made up, by furnishing the persons interested with all the other possible methods of doing themselves justice.
XXXVII. Now it is certain that societies, or the powers which govern them, by being armed with the force of the whole body, are sometimes encouraged to laugh with impunity at strangers, who come to demand their due; and that every subject contributes, one way or other, to enable them to act in this manner; so that he may be supposed in some measure to consent to it. But if he does not in reality consent, there is, after all, no other manner of facilitating, to injured strangers, the prosecution of their rights, which is rendered difficult by the united force of the whole body, than to authorise them to come upon all those who are members of it.<261>
XXXVIII. Let us therefore conclude, that by the constitution of civil societies, every subject, so long as he continues such, is responsible to strangers for the conduct of the society, or of him who governs it; with this clause, however, that he may demand indemnification, when there is any fault or injustice on the part of his superiors. But if it should be any man’s misfortune to be disappointed of this indemnification, he must look upon it as one of those inconveniencies which, in a civil state, the constitution of human affairs renders almost inevitable. If to all these we add the reasons alledged by Grotius, we shall plainly see, that there is no necessity for supposing a tacit consent of the people to found the right of reprisals.
XXXIX. As reprisals are acts of hostility, and often the prelude or forerunner of a compleat and perfect war, it is plain that none but the sovereign can lawfully use this right, and that the subjects can make no reprisals but by his order and authority.14
XL. Besides, it is proper that the wrong or injustice done us, and which occasions the reprisals, should be clear and evident, and that the thing in dispute be of great consequence. For if the injury be dubious, or of no importance, it would be equally unjust and dangerous to proceed to this extremity, and to expose ourselves to all the calamities of an open war. Neither ought we to come to reprisals, before we have tried, by the ordinary means, to obtain justice for the injury committed. For this purpose we must apply to the prince, whose subject<262> has done us the injustice; and if the prince takes no notice, or refuses satisfaction, we may then make reprisals, in order to obtain it.
XLI. In a word, we must not have recourse to reprisals, except when all the ordinary means of obtaining satisfaction have failed; so that, for instance, if a subordinate magistrate has refused us justice, we are not permitted to use reprisals before we apply to the sovereign himself, who will perhaps grant us satisfaction. In such circumstances, we may therefore either detain the subjects of a foreign state, if they with-hold ours; or we may seize their goods and effects. But whatever just reason we may have to make reprisals, we can never directly, and for that reason alone, put those to death whom we have seized upon, but only secure them, and not use them ill, till we have obtained satisfaction; so that, during all that time, they are to be considered as hostages.
XLII. In regard to the goods seized by the right of reprisals, we must take care of them till the time, in which satisfaction ought to be made, is expired; after which we may adjudge them to the creditor, or sell them for the payment of the debt; returning to him, from whom they were taken, the overplus, when all charges are deducted.
XLIII. We must also observe, that it is not permitted to use reprisals, except with regard to subjects, properly so called, and their effects; for as to strangers, who do but pass through a country, or<263> only come to make a short stay in it, they have not a sufficient connection with the state, of which they are only members but for a time, and in an imperfect manner; so that we cannot indemnify ourselves by them, for the loss we have sustained by any native of the country, and by the refusal of the sovereign to render us justice. We must farther except ambassadors, who are sacred persons, even in the height of war. But as to women, clergymen, men of letters, &c. the law of nature grants them no privilege in this case, if they have not otherwise acquired it by virtue of some treaty.
XLIV. Lastly, some political writers distinguish those wars which are carried on between two or more sovereigns, from those of the subjects against their governors. But it is plain, that when subjects take up arms against their prince, they either do it for just reasons, and according to the principles established in this work, or without a just and lawful cause. In the latter case, it is rather a revolt or insurrection, than a war, properly so called. But if the subjects have just reason to resist the sovereign, it is strictly a war; since, in such a crisis, there are neither sovereign nor subjects, all dependance and obligation having ceased. The two opposite parties are then in a state of nature and equality, trying to obtain justice by their own proper strength, which constitutes what we understand properly by the term war.15 <264>
Of those things which ought to precede war.
I. However just reason we may have to make war, yet as it inevitably brings along with it an incredible number of calamities, and oftentimes acts of injustice, it is certain that we ought not to proceed too easily to a dangerous extremity, which may perhaps prove fatal to the conqueror himself.
II. The following are the measures which prudence directs to be observed in these circumstances.
1°. Supposing the reason of the war is just in itself, yet the dispute ought to be about something of great consequence; since it is better even to relinquish part of our right, when the thing is not considerable, than to have recourse to arms to defend it.
2°. We ought to have, at least, a probable appearance of success; for it would be a criminal temerity, to expose ourselves to certain destruction, and to run into a greater, in order to avoid a lesser evil.
3°. Lastly, there should be a real necessity for taking up arms; that is, we ought not to have recourse to force, but when we can employ no milder method of recovering our right, or of defending ourselves from the evils with which we are menaced.<265>
III. These measures are agreeable not only to the principles of prudence, but also to the fundamental maxims of sociability, and the love of peace; maxims of no less force, with respect to nations, than individuals. By these a sovereign must therefore be necessarily directed; justice obliges him to it, in consequence of the very nature and end of government. For as he ought to take particular care of the state, and of his subjects, he should not expose them to the evils with which war is attended, except in the last extremity, and when there is no other expedient left but that of arms.
IV. It is not therefore sufficient that the war be just in itself, with respect to the enemy; it must also be so with respect to ourselves, and our subjects. Plutarch informs us, “that among the ancient Romans, when the Feciales had determined that a war might be justly undertaken, the senate afterwards examined whether it would be advantageous to engage in it.”
V. Now among the methods of deciding differences between nations without a war, there are three most considerable. The first is an amicable conference between the contending parties; with respect to which Cicero judiciously observes, “that this method of terminating a difference by a discussion of reasons on both sides, is peculiarly agreeable to the nature of man; that force belongs to brutes, and that we never ought to have recourse to it, but when we cannot redress our grievances by any other method.”1 <266>
VI. The second way of terminating a difference between those who have not a common judge, is to put the matter to arbitration. The more potent indeed often neglect this method, but it ought certainly to be followed by those who have any regard to justice and peace; and it is a way that has been taken by great princes and people.2
VII. The third method, in fine, which may be sometimes used with success, is that of casting lots. I say, we may sometimes use this way; for it is not always lawful to refer the issue of a difference, or of a war, to the decision of lots. This method cannot be taken, except when the dispute is about a thing, in which we have a full property,3 and which we may renounce whenever we please. But in general, the obligation of the sovereign to defend the lives, the honour, and the religion4 of his subjects, as also his obligation to maintain the dignity of the state, are of too strong a nature to suffer him to renounce the most natural and most probable means of his own security, as well as that of the public, and to refer his case to chance, which in its nature is entirely precarious.
VIII. But if upon due examination he, who has been unjustly attacked, finds himself so weak, that he has no probability of making any considerable resistance, he may reasonably decide the difference by the way of lot, in order to avoid a certain, by exposing himself to an uncertain danger; which, in this case, is the least of two inevitable evils.<267>
IX. There is also another method, which has some relation to lots. This consists in single combats, which have often been used to terminate such differences as were likely to produce a war between two nations. And indeed, to prevent a war, and its concomitant evils, I see no reason that can hinder us from referring matters to a combat between a certain number of men agreed upon by both parties. History furnishes us with several examples of this kind, as that of Turnus and Eneas, Menelaus and Paris, the Horatii and the Curiatii.5
X. It is a question of some importance, to know whether it be lawful6 thus to expose the interest of a whole state to the fate of those combats. It appears on the one hand, that by such means we spare the effusion of human blood, and abridge the calamities of war; on the other hand, it promiseth fairer, and looks like a better venture, to stand the shock even of a bloody war, than by one blow to risque the liberty and safety of the state by a decisive combat; since, after the loss of one or two battles, the war may be set on foot again, and a third perhaps may prove successful.
XI. However, it may be said, that if otherwise there is no prospect of making a good end of a war, and if the liberty and safety of the state are at stake, there seems to be no reason against taking this step, as the least of two evils.
XII. Grotius, in examining this question, pretends that these combats are not reconcileable to in-<268>ternal justice, though they are approved by the external right of nations; and that private persons cannot innocently expose their lives, of their own accord, to the hazard of a single combat, though such a combat may be innocently permitted by the state or sovereign, to prevent greater mischiefs. But it has been justly observed, that the arguments used by this great man, either prove nothing at all, or prove, at the same time, that it is never lawful to venture one’s life in any combat whatever.7
XIII. We may even affirm, that Grotius is not very consistent with himself, since he permits this kind of combats, when otherwise there is the greatest probability that he who prosecutes an unjust cause will be victorious, and thereby destroy a great number of innocent persons: For this exception evinces that the thing is not bad in itself, and that all the harm, which can be in this case, consists in exposing our own life, or that of others, without necessity, to the hazard of a single combat. The desire of terminating, or preventing a war, which has always terrible consequences, even to the victorious, is so commendable, that it may excuse, if not intirely justify those, who engage either themselves or others even imprudently in a combat of this kind. Be this as it may, it is certain that in such a case, those who combat by the order of the state, are entirely innocent; for they are no more obliged to examine whether the state acts prudently or not, than when they are sent upon an assault, or to fight a pitched battle.<269>
XIV. We must however observe, that it was a foolish superstition in those people who looked upon a set combat as a lawful method of determining all differences, even between individuals, from a persuasion that the Deity gave always the victory to the good cause; for which reason they called this kind of combat the judgment of God.8
XV. But if, after having used all our endeavours to terminate differences in an amicable manner, there remains no further hope, and we are absolutely constrained to undertake a war, we ought first to declare it in form.
XVI. This declaration of war considered in itself, and independently of the particular formalities of each people, does not simply belong to the law of nations, taking this word in the sense of Grotius, but to the law of nature itself. Indeed prudence, and natural equity, equally require, that before we take up arms against any state, we should try all amicable methods, to avoid coming to such an extremity. We ought then to summon him, who has injured us, to make a speedy satisfaction, that we may see whether he will not have regard to himself, and not put us to the hard necessity of pursuing our right by the force of arms.9
XVII. From what has been said it follows, that this declaration takes place only in offensive wars; for when we are actually attacked, that alone gives us reason to believe that the enemy is resolved not to listen to an accommodation.<270>
XVIII. From thence it also follows, that we ought not to commit acts of hostility immediately upon declaring war, but should wait, so long at least as we can without doing ourselves a prejudice, until he who has done us the injury plainly refuses to give us satisfaction, and has put himself in a condition to receive us with bravery and resolution;10 otherwise the declaration of war would be only a vain ceremony. For we ought to neglect no means to convince all the world, and even the enemy himself, that it is only absolute necessity that obliges us to take up arms, for the recovery or defence of our just rights; after having tried every other method, and given the enemy full time to consider.
XIX. Declarations of war are distinguished into conditional and absolute. The conditional is that which is joined with a solemn demand of restitution, and with this condition, that if the injury be not repaired, we shall do ourselves justice by arms. The absolute is that which includes no condition, and by which we absolutely renounce the friendship and society of him against whom we declare war. But every declaration of war, in whatever manner it be made, is of its own nature conditional;* for we ought always to be disposed to accept of a reasonable satisfaction, so soon as the enemy offers it; and on this account some writers reject this distinction of the declaration of war into conditional and absolute. But it may nevertheless be maintained, by supposing that he, against whom war is declared purely and simply, has already shewn, that he had no design<271> to spare us the necessity of taking up arms against him. So far therefore the declaration may, at least as to the form of it, be pure and simple, without any prejudice to the disposition in which we ought always to be, if the enemy will hearken to reason: but this relates to the conclusion, rather than the commencement of a war; to the latter of which the distinction of conditional and absolute declarations properly belongs.11
XX. As soon as war has been declared against a sovereign, it is presumed to be declared at the same time not only against all his subjects, who, in conjunction with him, form one moral person; but also against all those who shall afterwards join him, and who, with respect to the principal enemy, are to be looked upon only as allies, or adherents.12
XXI. As to the formalities observed by different nations in declaring war, they are all arbitrary in themselves. It is therefore a matter of indifference, whether the declaration be made by envoys, heralds, or letters; whether to the sovereign in person, or to his subjects, provided the sovereign cannot plead ignorance of it.
XXII. With respect to the reasons why a solemn denunciation was required unto such a war, as by the law of nations is called just;13 Grotius pretends it was, that the people might be assured that the war was not undertaken by private authority, but by the consent of one or other of the nations, or of their sovereigns.<272>
XXIII. But this reason of Grotius’s seems to be insufficient; for are we more assured that the war is made by public authority, when a herald, for instance, comes to declare it with certain ceremonies, than we should be, when we see an army upon our frontiers, commanded by a principal person of the state, and ready to enter our country? Might it not more easily happen, that one, or a few persons, should assume the character of herald, than that a single man should, of his own authority, raise an army, and march at the head of it to the frontiers, without the sovereign’s knowledge?14
XXIV. The truth is, the principal end of a declaration of war, or at least what has occasioned its institution, is to let all the world know that there was just reason to take up arms, and to signify to the enemy himself, that it had been, and still was, in his power to avoid it. The declarations of war, and the manifestos published by princes, are marks of the due respect they have for each other, and for society in general, to whom by such means they give an account of their conduct, in order to obtain the public approbation. This appears particularly by the manner in which the Romans made those denunciations. The person sent for this purpose took the gods to witness, that the nation, against whom they had declared war, had acted unjustly, by refusing to comply with what law and justice required.
XXV. Lastly, it is to be observed, that we ought not to confound the declaration with the publication<273> of war. This last is made in favour of the subjects of the prince who declares the war, and to inform them, that they are henceforth to look upon such a nation as their enemies, and to take their measures accordingly.
General rules to know what is allowable in war.
I. It is not enough that a war be undertaken with justice, or for a lawful reason, and that we observe the other conditions hitherto mentioned; but we ought also, in the prosecution of it, to be directed by the principles of justice and humanity, and not to carry the liberties of hostility beyond those bounds.
II. Grotius, in treating this subject, establishes three general rules, as so many principles, which serve to explain the extent of the rights of war.1
III. The first is, that every thing which has a connection morally necessary with the end of the war, is permitted, and no more. For it would be to no purpose to have a right to do a thing, if we could not make use of the necessary means to bring it about. But, at the same time, it would not be just, that, under a pretence of defending our right, we should think every thing lawful, and pro-<274>ceed, without any manner of necessity, to the last extremity.
IV. The second rule. The right we have against an enemy, and which we pursue by arms, ought not to be considered only with respect to the cause which gave rise to the war; but also with respect to the fresh causes which happen afterwards, during the prosecution of hostilities: Just as in courts of law, one of the parties often acquires some new right before the end of the suit. This is the foundation of the right we have to act against those who join our enemy, during the course of the war, whether they be his dependents or not.
V. The third rule, in fine, is, that there are a great many things, which, though otherwise unlawful, are yet permitted in war, because they are inevitable consequences of it, and happen contrary to our intention, otherwise there would never be any way of making war without injustice; and the most innocent actions would be looked upon as criminal, since there are but few, from which some evil may not accidentally arise, contrary to the intention of the agent.
VI. Thus, for example, in recovering our own, if just so much as is precisely our due cannot be had, we have a right to take more, but under the obligation of returning the value of the overplus. Hence we may attack2 a ship full of pirates, though there may be women, or children, or other innocent persons on board, who must needs be exposed to the danger of<275> being involved in the ruin of those whom we may justly destroy.
VII. This is the extent of the right we have against an enemy, in consequence of a state of war. By a state of war, that of society is abolished; so that whoever declares himself my enemy, gives me liberty to use violence against him in infinitum, or so far as I please; and that not only till I have repulsed the danger that threatened me, or till I have recovered, or forced from him, what he either unjustly deprived me of, or refused to pay me, but till I have further obliged him to give me good security for the future. It is not therefore always unjust to return a greater evil for a less.3
VIII. But it is also to be observed, that though these maxims are true, according to the strict right of war, yet the law of humanity fixes bounds to this right. That law directs us to consider, not only whether such or such acts of hostility may, without injury, be committed against an enemy; but also, whether they are worthy of a humane or generous conqueror. Thus, so far as our own defence and future security will permit, we must moderate the evils we inflict upon an enemy, by the principles of humanity.
IX. As to the manner of acting lawfully against an enemy, it is evident that violence and terror are the proper characteristics of war, and the method most commonly used. Yet it is also lawful to employ stratagem and artifice, pro-<276>vided it be without treachery, or breach of promise. Thus we may deceive an enemy by false news, and fictitious relations, but we ought never to violate our compacts or engagements with him, as we shall shew more particularly hereafter.4
X. By this we may judge of the right of stratagems; neither is it to be doubted but we may innocently use fraud and artifice, wherever it is lawful to have recourse to violence and force. The former means have even the advantage over the latter, in this, that they are attended with less mischief, and preserve the lives of a great many innocent people.
XI. It is true, some nations have rejected the use of stratagem and deceit in war; this, however, was not because they thought them unjust, but from a certain magnanimity, and often from a confidence in their own strength. The Romans, till very near the end of the second Punic war, thought it a point of honour to use no stratagem against their enemies.5
XII. These are the principles by which we may judge to what degree the laws of hostility may be carried. To which let us add, that most nations have fixed no bounds to the rights which the law of nature gives us to act against an enemy: and the truth is, it is very difficult to determine, precisely, how far it is proper to extend acts of hostility even in the most legitimate wars, in defence of our persons, or for the reparation of damages, or for obtaining caution for the future; especially as those, who engage in war, give each other, by a kind of tacit<277> agreement, an entire liberty to moderate or augment the violence of arms, and to exercise all acts of hostility, as each shall think proper.6
XIII. And here it is to be observed, that though generals usually punish their soldiers, who have carried acts of hostility beyond the orders prescribed; yet this is not because they suppose the enemy is injured, but because it is necessary the general’s orders should be obeyed, and that military discipline should be strictly observed.
XIV. It is also, in consequence of these principles, that those who, in a just and solemn war, have pushed slaughter and plunder beyond what the law of nature permits, are not generally looked upon as murderers or robbers, nor punished as such. The custom of nations is to leave this point to the conscience of the persons engaged in war, rather than involve themselves in troublesome broils, by taking upon them to condemn either party.
XV. It may be even said, that this custom of nations is founded on the principles of the law of nature. Let us suppose, that in the independance of the state of nature, thirty heads of families, inhabitants of the same country, should have entered into a league to attack or repulse a body, composed of other heads of families: I say, that neither during that war, nor after it is finished, those of the same country, or elsewhere, who had not joined the league of either side, ought, or could punish,<278> as murderers or robbers, any of the two parties who should happen to fall into their hands.7
XVI. They could not do it during the war; for that would be espousing the quarrel of one of the parties; and since they continued neuter in the beginning, they had clearly renounced the right of interfering with what should pass in the war: much less could they intermeddle after the war is over; because, as it could not be ended without some accommodation or treaty of peace, the parties concerned were reciprocally discharged from all the evils they had done to each other.
XVII. The good of society also requires that we should follow these maxims. For if those, who continued neuter, had still been authorised to take cognizance of the acts of hostility, exercised in a foreign war, and consequently to punish such as they believed to have committed any injustice, and to take up arms on that account; instead of one war, several might have arisen, and proved a source of broils and troubles. The more wars became frequent, the more necessary it was, for the tranquillity of mankind, not to espouse rashly other people’s quarrels. The establishment of civil societies only rendered the practice of those rules more necessary; because acts of hostility then became, if not more frequent, at least more extensive, and attended with a greater number of evils.
XVIII. Lastly, it is to be observed, that all acts of<279> hostility, which can be lawfully committed against an enemy, may be exercised either in his territories, or ours, in places subject to no jurisdiction, or at sea.
XIX. This does not hold good in a neutral country; that is to say, whose sovereign has taken no share in the war. In such countries, we cannot lawfully exercise any acts of hostility; neither on the persons of the enemy, nor on their effects; not in virtue of any right of the enemy themselves, but from a just respect to the sovereign, who having taken neither side, lays us under a necessity of respecting his jurisdiction, and of forbearing to commit any acts of violence in his territories. To this we may add, that the sovereign, by continuing neuter, has tacitly engaged not to suffer either party to commit any hostilities within his dominions.
Of the rights which war gives over the persons of the enemy, and of their extent and bounds.
I. We shall now enter into the particulars of the different rights which war gives over the enemy’s person and goods; and to begin with the former.
1°. It is certain that we may lawfully kill an enemy; I say lawfully, not only according to the terms of external justice, which passes for such among all<280> nations, but also according to internal justice, and the laws of conscience. Indeed the end of war necessarily requires that we should have this power, otherwise it would be in vain to take up arms, and the law of nature would permit it to no purpose.1
II. If we consulted only the custom of countries, and what Grotius calls the law of nations, this liberty of killing an enemy would extend very far; we might say that it had no bounds, and might even be exercised on innocent persons. However, though it be certain that war is attended with numberless evils, which in themselves are acts of injustice, and real cruelty, but, under particular circumstances, ought rather to be considered as unavoidable misfortunes; it is nevertheless true, that the right which war gives over the person and life of an enemy has its bounds, and that there are measures to be observed, which cannot be innocently neglected.
III. In general, we ought always to be directed by the principles established in the preceding chapter, in judging of the degrees to which the liberties of war may be carried. The power we have of taking away the life of an enemy, is not therefore unlimited; for if we can attain the legitimate end of war, that is, if we can defend our lives and properties, assert our rights, and recover satisfaction for damages sustained, and good sureties for the future, without taking away the life of the enemy, it is certain that justice and humanity directs us to forbear it, and not to shed human blood unnecessarily.<281>
IV. It is true, in the application of these rules to particular cases, it is sometimes very difficult, not to say impossible, to fix precisely their proper extent and bounds; but it is certain, at least, that we ought to come as near to them as possible, without prejudicing our real interests. Let us apply these principles to particular cases.
V. 1°. It is often disputed, whether the right of killing an enemy regards only those who are actually in arms; or whether it extends indifferently to all those in the enemy’s country, subjects or foreigners? My answer is, that with respect to those who are subjects, the point is incontestable. These are the principal enemies, and we may exercise all acts of hostility against them, by virtue of the state of war.2
VI. As to strangers, those who settle in the enemy’s country after a war is begun, of which they had previous notice, may justly be looked upon as enemies, and treated as such. But in regard to such as went thither before the war, justice and humanity require that we should give them a reasonable time to retire; and if they neglect that opportunity, they are accounted enemies.
VII. 2°. With regard to old men, women and children, it is certain that the right of war does not, of itself, require that we should push hostilities so far as to kill them; it is therefore a barbarous cruelty to do so. I say, that the end of war does not require this of itself; but if women, for instance, exercise<282> acts of hostility; if, forgetting the weakness of their sex, they usurp the offices of men, and take up arms against us, then we are certainly excused in availing ourselves of the rights of war against them. It may also be said, that when the heat of action hurries the soldiers, as it were in spite of themselves and against the order of their superiors, to commit those acts of inhumanity; for example, at the siege of a town, which, by an obstinate resistance, has irritated the troops; we ought to look upon those evils rather as misfortunes, and the unavoidable consequences of war, than as crimes that deserve to be punished.3
VIII. 3°. We must reason almost in the same manner, with respect to prisoners of war. We cannot, generally speaking, put them to death, without being guilty of cruelty. I say generally speaking; for there may be cases of necessity so pressing, that the care of our own preservation obliges us to proceed to extremities, which in any other circumstances would be absolutely criminal.4
IX. In general, even the laws of war require that we should abstain from slaughter as much as possible, and not shed human blood without necessity. We ought not, therefore, directly and deliberately to kill prisoners of war, nor those who ask quarter, or surrender themselves, much less old men, women and children; in general, we should spare all those whose age and profession render them unfit to carry arms, and who have no other share in the war, than their being in the enemy’s country. It is<283> easy also to conceive, that the rights of war do not extend so far, as to authorise the outrages committed upon the honour and chastity of women; for this contributes nothing either to our defence or safety, or to the support of our rights, but only serves to satisfy the brutality of the soldiers.*
X. Again, a question is here started, whether in cases, where it is lawful to kill the enemy, we may not, for that purpose, use all kinds of means indifferently? I answer, that to consider the thing in itself, and in an abstract manner, it is no matter which way we kill an enemy, whether by open force, or by fraud and stratagem; by the sword, or by poison.
XI. It is however certain that, according to the idea and custom of civilized nations, it is looked upon as a base act of cowardice, not only to cause any poisonous draught to be given to the enemy, but also to poison wells, fountains, springs, rivers, arrows, darts, bullets, or other weapons used against him. Now it is sufficient, that this custom of looking on the use of poison as criminal, is received among the nations at variance with us, to suppose we comply with it, when, in the beginning of the war, we do not declare that we are at liberty to act otherwise, and leave it to our enemy’s option to do the same.5
XII. We may so much the more suppose this tacit agreement, as humanity, and the interest of<284> both parties equally require it; especially since wars are become so frequent, and are often undertaken on such slight occasions; and since the human mind, ingenious in inventing the means to hurt, has so greatly multiplied those which are authorised by custom, and looked upon as honest. Besides, it is beyond all doubt, that when we can obtain the same end by milder and more humane measures, which preserve the lives of many, and particularly of those in whose preservation human society is interested, humanity directs that we should take this course.
XIII. These are therefore just precautions, which men ought to follow for their own advantage. It is for the common benefit of mankind, that dangers should not be augmented without end. In particular, the public is interested in the preservation of the lives of kings, generals of armies, and other persons of the first rank, on whose safety that of societies generally depends. For if the lives of these persons are in greater safety than those of others, when attacked only by arms; they are, on the other hand, more in danger of poison, &c. and they would be every day exposed to perish in this manner, if they were not protected by a regard to some sort of law, or established custom.
XIV. Let us add, in fine, that all nations that ever pretended to justice and generosity, have followed these maxims. The Roman consuls, in a letter they wrote to Pyrrhus, informing him that one of his people had offered to poison him, said,<285> that it was the interest of all nations not to set such examples.
XV. It is likewise disputed, whether we may lawfully send a person to assassinate an enemy? I answer, 1°. that he who for this purpose employs only some of his own people, may do it justly. When it is lawful to kill an enemy, it is no matter whether those employed are many or few in number. Six hundred Lacedaemonians, with Leonidas, entered the enemy’s camp, and went directly to the Persian king (Xerxes’s) pavilion; and a smaller number might certainly have done the same. The famous attempt of Mucius Scevola is commended by all antiquity; and Porsenna himself, whose life was aimed at, acknowledged this to be an act of great valour.6
XVI. 2°. But it is not so easy to determine whether we may for this purpose employ assassins, who by undertaking this task must be guilty of falshood and treason; such as subjects with regard to their sovereign, and soldiers to their general. In this respect there are, in my opinion, two points to be distinguished. First, whether we do any wrong, even to the enemy himself, against whom we employ traitors; and secondly, whether supposing we do him no wrong, we commit nevertheless a bad action.7
XVII. 3°. With regard to the first question, to consider the thing in itself, and according to the rigorous law of war, it seems, that, admitting the war to be just, no wrong is done to the enemy,<286> whether we take advantage of the opportunity of a traitor, who freely offers himself, or whether we seek for it, and bring it about ourselves.
XVIII. The state of war, into which the enemy has put himself, and which it was in his own power to prevent, permits of itself every method that can be used against him; so that he has no reason to complain, whatever we do. Besides, we are no more obliged, strictly speaking, to respect the right he has over his subjects, and the fidelity they owe him as such, than their lives and fortunes, of which we may certainly deprive them by the right of war.
XIX. 4°. And yet I believe that this is not sufficient to render an assassination, under such circumstances, entirely innocent. A sovereign, who has the least tenderness of conscience, and is convinced of the justice of his cause, will not endeavour to find out perfidious methods to subdue his enemy, nor be so ready to embrace those which may present themselves to him. The just confidence he has in the protection of heaven, the horror he conceives at the traitor’s perfidy, the dread of becoming his accomplice, and of setting an example, which may fall again on himself and others, will make him despise and reject all the advantage he might propose to himself from such means.
XX. 5°. Let us also add, that such means cannot always be looked upon as entirely innocent, even with respect to the person who employs the assassin. The state of hostility, which supersedes<287> the intercourse of good offices, and authorises to hurt, does not therefore dissolve all ties of humanity, nor remove our obligation to avoid, as much as possible, the giving room for some bad actions of the enemy, or his people; especially those, who of themselves have had no part in the occasion of the war. Now every traitor certainly commits an action equally shameful and criminal.
XXI. 6°. We must therefore conclude with Grotius, that we can never in conscience seduce, or sollicit the subjects of an enemy to commit treason, because that is positively and directly inducing them to perpetrate a heinous crime, which otherwise would, in all probability, have been very remote from their thoughts.
XXII. 7°. It is quite another thing, when we only take advantage of the occasion and the dispositions we find in a person, who has had no need to be sollicited to commit treason. Here, I think, the infamy of the perfidy does not fall on him who finds it intirely formed in the heart of the traitor; especially if we consider, that, in this case between enemies, the thing, with respect to which we take advantage of the bad disposition of another, is of such a nature, that we may innocently and lawfully do it ourselves.
XXIII. 8°. Be that as it may, for the reasons above alledged, we ought not to take advantage of a treason which offered itself, except in an extraordinary case, and from a kind of necessity. And though the<288> custom of several nations has nothing obligatory in itself, yet as the people, with whom we are at variance, look upon the very acceptance of a certain kind of perfidy to be unlawful, as that of assassinating one’s prince or general, we are reasonably supposed to comply with it by a tacit consent.
XXIV. 9°. Let us observe, however, that the law of nations allows some difference between a fair and legitimate enemy, and rebels, pirates, or highwaymen. The most religious princes make no difficulty to propose even rewards to those who will betray such persons; and the public odium of all, which men of this stamp lie under, is the cause that no body thinks the measure hard, or blames the conduct of the prince in using every method to destroy them.8
XXV. Lastly, it is permitted to kill an enemy wherever we find him, except in a neutral country; for violent means are not suffered in a civilised society, where we ought to implore the assistance of the magistrate. In the time of the second Punic war,* seven Carthaginian galleys rode in a harbour belonging to Syphax, who was then in peace both with the Romans and Carthaginians, and Scipio came that way with two galleys only. The Carthaginians immediately prepared to attack the Roman galleys, which they might easily have taken before they had entered the port; but being forced by a strong wind into the harbour, before the Carthaginians had time to weigh<289> anchor, they durst not attack them, because it was in a neutral prince’s haven.9
XXVI. Here it may be proper to say something concerning prisoners of war. In former times, it was a custom almost universally established, that those who were made prisoners in a just and solemn war, whether they had surrendered themselves, or been taken by main force, became slaves, the moment they were conducted into some place dependent on the conqueror. And this right was exercised on all persons whatsoever, even on those who happened unfortunately to be in the enemy’s country, at the time the war suddenly broke out.10
XXVII. Further, not only the prisoners themselves, but their posterity, were reduced to the same condition; that is to say, those born of a woman after she had been made a slave.11
XXVIII. The effects of such a slavery had no bounds; every thing was permitted to a master with respect to his slave, he had the power of life and death over him, and all that the slave possessed, or could afterwards acquire, belonged of right to the master.
XXIX. There is some probability, that the reason and end for which nations had established this custom of making slaves in war, was principally to induce the captors to abstain from slaughter, from a view of the advantages they reaped from their slaves. Thus historians observe, that civil wars were<290> more cruel than others, the general practice in that case being to put the prisoners to the sword, because they could not make slaves of them.
XXX. But Christian nations have generally agreed among themselves, to abolish the custom of making their prisoners yield perpetual service to the conqueror. At present it is thought sufficient to keep those that are taken in war, till their ransom is paid, the estimation of which depends on the will of the conqueror, unless there be a cartel, or agreement, by which it is fixed.
Of the rights of war over the goods of an enemy.
I. As to the goods of an enemy, it is certain that the state of war permits us to carry them off, to ravage, to spoil, or even intirely to destroy them; for as Cicero very well observes, *It is not contrary to the law of nature, to plunder a person whom we may lawfully kill: and all those mischiefs, which the law of nations allows us to do to the enemy, by ravaging and wasting his lands and goods, are called spoil or plunder.1
II. This right of spoil, or plunder, extends in general to all things belonging to the enemy; and the law of nations, properly so called, does not exempt even sacred things; that is, things consecrated<291> either to the true God, or to false deities, and designed for the use of religion.
III. It is true, the practices and customs of nations do not agree in this respect; some having permitted the plunder of things sacred and religious, and others having looked upon it as a profanation. But whatever the customs of different people may be, they can never constitute the primitive rule of right. In order, therefore, to be assured of the right of war in regard to this article, we must have recourse to the law of nature and nations.
IV. I observe then, that things sacred are not in themselves different from those we call profane. The former differ from the latter, only by the religious use to which they were intended. But this application or use does not invest the things with the quality of holy and sacred, as an intrinsic and indelible character.2
V. The things thus consecrated still belong either to the state, or to the sovereign; and there is no reason why the prince, who has devoted them to religious purposes, may not afterwards apply them to the uses of life; for they, as well as all other public matters, are at his disposal.
VI. It is therefore a gross superstition to believe, that by the consecration, or destination of those things to the service of God, they change master, and belong no more to men, but are entirely with-<292>drawn from human commerce; and the property of them is transferred to God. This is a dangerous superstition, owing to the ambition of the clergy.
VII. We must therefore consider sacred things as public goods, which belong to the state or sovereign. All the liberty which the right of war gives over the goods belonging to the state, it also gives with respect to things called sacred. They may therefore be spoiled or wasted by the enemy, at least so far as is necessary and conducive to the design of the war; a limitation not at all peculiar to the plunder of sacred or religious things.
VIII. For, in general, it certainly is not lawful to plunder3 for plunder’s sake, but it is just and innocent only, when it bears some relation to the design of the war; that is, when an advantage directly accrues from it to ourselves, by appropriating those goods, or at least, when by ravaging and destroying them, we in some measure weaken the enemy. It would be a madness, equally brutal and criminal, to do evil to another without a prospect of procuring some good, either directly or indirectly, to ourselves. It very seldom happens, for instance, that after the taking of towns, there is any necessity for ruining temples, statues, or other public or private structures: we should therefore generally spare all these, as well as the tombs and sepulchres.
IX. It may however be observed, with respect to things sacred, that they who believe they<293> contain something divine, and inviolable, are really in the wrong to meddle with them at all; but this is only, because they would then act against their conscience. And here, by the way, we may take notice of a reason given to clear the Pagans of the imputation of sacrilege, even when they pillaged the temples of the gods, whom they acknowledged as such; which is, they imagined that when a city was taken, the guardian deities of that place quitted, at the same time, their temples and altars, especially after those deities, with every thing else that was sacred, had been invited out with certain ceremonies. This is excellently described by Cocceius, in his dissertation De Evocatione Sacrorum.4
X. The learned Grotius furnishes us with wise reflections on this subject, to persuade generals to behave with moderation in regard to plunder, from the advantages which may accrue to themselves from such a conduct. And first he says, “by these means we take from the enemy one of the most powerful weapons, despair. Besides, by sparing the enemy’s country, we give room to believe that we are pretty confident of victory: and clemency is of itself proper to soften and engage the minds of men. All which may be proved by several illustrious examples.”5
XI. Besides the power which war gives to spoil and destroy the goods of an enemy, it likewise confers a right of acquiring, appropriating, and justly retaining the goods we have taken from him, till the sum due to us is paid, including the expences<294> of the war, in which his refusal of payment engaged us; and whatever else we think necessary to secure to ourselves, by way of caution, from the enemy.
XII. By the law of nations, not only he that makes war for a just reason, but also every man, in a just war, acquires a property in what he takes from the enemy, and that without rule or measure, at least as to the external effects, with which the right of property is accompanied: that is to say, neutral nations ought to regard the two parties at war, as lawful proprietors of what they can take from each other by force of arms; the state of neutrality not permitting them to espouse either side, or to treat either of the contending powers as an usurper, pursuant to the principles already established.6
XIII. This is generally true, as well with respect to moveables as immoveables, so long as they are in the possession of him who has acquired them by the right of war. But if from the hands of the conqueror they have passed into the power of a third, there is no reason, if they are immoveables, why the ancient owner should not try to recover them from that third, who holds them of the enemy, by what title soever; for he has as good a right against the new possessor, as against the enemy himself.
XIV. I said, if they are immoveables; for with respect to moveable effects, as they may easily be transferred by commerce into the hands of the subjects of a neutral state, often without their know-<295>ing that they were taken in war; the tranquillity of nations, the good of commerce, and even the state of neutrality, require that they should ever be reputed lawful prize, and the property of the person of whom we hold them. But the case is otherwise with respect to immoveables, they are such in their own nature; and those to whom a state, which has taken them from an enemy, would resign them, cannot be ignorant of the manner in which it possesses them.
XV. Here a question arises, when is it that things are said to be taken by the right of war, and justly deemed to belong to him who is in possession of them?7 Grotius answers as a civilian, that a man is deemed to have taken moveable things by the right of war, so soon as they are secured from the pursuit of the enemy; or when he has made himself master of them in such a manner, that the first owner has lost all probable hopes of recovering them. Thus, says he, at sea, ships and other things are not said to be taken, till they are brought into some port or harbour belonging to us, or to some part of the sea where our fleet rides; for it is only then that the enemy begins to despair of recovering his property.
XVI. But, in my opinion, this manner of answering the question is altogether arbitrary. I see no reason why the prizes, taken from the enemy, should not become our property so soon as they are taken. For when two nations are at war, both of them have all the requisites for the acquisition<296> of property, at the very moment they take a prize. They have an intention to acquire a title of just property, namely, the right of war; and they are actually in possession of the thing. But if the principle, which Grotius supposes, were to be allowed, and the prizes taken from the enemy were not deemed a lawful acquisition, till they are transported to a place of safety, it would follow, that the booty which a small number of soldiers has taken in war, may be retaken from them by a stronger body of troops of the same party, as still belonging to the enemy, if this stronger body of troops has attacked the other before they had conveyed their booty to a place of safety.
XVII. The latter circumstance is therefore altogether indifferent, with respect to the present question. The greater or lesser difficulty the enemy may find, in recovering what has been taken from him, does not hinder the capture from actually belonging to the conqueror. Every enemy, as such, and so long as he continues such, retains the will to recover what the other has taken from him; and his present inability only reduces him to the necessity of waiting for a more favourable opportunity, which he still seeks and desires. Hence, with respect to him, the thing ought no more to be deemed taken, when in a place of safety, than when he is still in a condition of pursuing it. All that can be said, is, that in the latter case, the possession of the conqueror is not so secure as in the former. The truth is, this distinction has been invented only to establish the<297> rules of the right of postliminy, or the manner in which the subjects of the state, from whom something has been taken in war, re-enter upon their rights; rather than to determine the time of the acquisition of things taken by one enemy from another.
XVIII. This seems to be the determination of the law of nature in regard to this point. Grotius observes also, that by the customs established in his time,8 it is sufficient that the prize has been twenty-four hours in the enemy’s possession, to account it lost. Thuanus, in the year 1595, gives us an example, that this custom was observed also by land. The town of Liere in Brabant having been taken and retaken the same day, the plunder was returned to the inhabitants, because it had not been twenty-four hours in the hands of the enemy. But this rule was afterwards changed, with respect to the United Provinces; and in general we may observe, that every sovereign has a right to establish such rules, in regard to this point, as he thinks proper, and to make what agreement he pleases with other powers. There have been several made, at different times, between the Dutch and Spaniards, the Portugueze and the northern states.
XIX. Grotius applies these principles also to lands; they are not to be reputed lost so soon as they are seized on; but for this effect they are to be so secured with fortifications, that, without being forced, they cannot be repossessed by the first<298> owner. But to this case we may also apply the reflections already made. A territory belongs to an enemy as soon as he is master of it, and so long as he continues in possession of it. The greater, or lesser precautions to secure it, are nothing to the purpose.9
XX. But be this as it may, it is to be observed, that during the whole time of the war, the right we acquire over the things we have taken from the enemy, is of force only with respect to a third disinterested party; for the enemy himself may retake what he has lost, whenever he finds an opportunity, till by a treaty of peace he has renounced all his pretensions.
XXI. It is also certain, that in order to appropriate a thing by the right of war, it must belong to the enemy; for things belonging to people who are neither his subjects, nor animated with the same spirit as he against us, cannot be taken by the right of war, even though they are found in the enemy’s country. But if neutral strangers furnish our enemy with any thing, and that with a design to put him into a condition of hurting us, they may be looked upon as taking part with our foe, and their effects may consequently be taken by the right of war.10
XXII. It is however to be observed, that in dubious cases it is always to be presumed, that what we find in the enemy’s country, or in their ships, is deemed to belong to them; for besides that this<299> presumption is very natural, were the contrary maxim to take place, it would lay a foundation for an infinite number of frauds. But this presumption, however reasonable in itself, may be destroyed by contrary proofs.11
XXIII. Neither do the ships of friends become lawful prizes, though some of the enemy’s effects are found in them, unless it is done by the consent of the owners; who by that step seem to violate the neutrality, or friendship, and give us a just right to treat them as an enemy.
XXIV. But in general we must observe, with respect to all these questions, that prudence and good policy require, that sovereigns should come to some agreement among themselves, in order to avoid the disputes which may arise from those different cases.
XXV. Let us also take notice of a consequence of the principles here established; which is, that when we have taken things from the enemy, of which he himself had stripped another by the right of war, the former possessor cannot claim them.12
XXVI. Another question is, whether things, taken in a public and solemn war, belong to the state, or to the individuals who are members of it, or to those who made the first seizure? I answer, that as the right of war is lodged in the sovereign alone, and undertaken by his authority, every thing taken is originally and pri-<300>marily acquired to him, whatever hands it first falls into.13
XXVII. However, as the war is burdensome to the subjects, both equity and humanity require that the sovereign should make them partake of the advantages which may accrue from it. This may be done, either by assigning to those who take the field a certain pay from the public, or by sharing the booty among them. As to foreign troops, the prince is obliged to give them no more than their pay; what he allows them above that, is pure liberality.14
XXVIII. Grotius, who examines this question at large, distinguishes between acts of hostility truly public, and private acts that are done upon the occasion of a public war. By the latter, according to him, private persons acquire to themselves principally, and directly, what they take from the enemy; whereas, by the former, every thing taken belongs to the whole body of the people, or to the sovereign. But this decision has been justly criticised. As all public war is made by the authority of the people, or of their chief, it is from this source we must originally derive whatever right individuals may have to things taken in war. In this case there must always be an express or tacit consent of the sovereign.
XXIX. It is also to be observed, that in treating this point Grotius has confounded different things. The question does not relate to the law of nations,<301> properly so called; for in whatever manner that law is understood, and whatever it be founded on, it ought to relate to the affairs in dispute between two different states. Now whether the booty belongs to the sovereign who makes war, or to the generals, or to the soldiers, or to other persons, that is nothing to the enemy, nor to other states. If what is taken be a good prize, it is of small consequence to the enemy in whose hands it remains. With regard to neutral people, it is sufficient that such of them as have purchased, or any other way acquired a moveable thing taken in war, cannot be molested, or prosecuted upon that account. The truth is, the regulations and customs, relating to this subject, are not of public right; and their conformity, in many countries, implies no more than a civil right, common to several nations separately.
XXX. As for what in particular relates to the acquisition of incorporeal things by the right of war, it is to be observed, that they do not become our property, except we are in possession of the subject in which they inhere. Now the subjects they inhere in, are either things or persons. We often annex, for instance, to certain lands, rivers, ports and towns, particular rights, which always follow them, whatever possessors they come to; or rather, those who possess them, are thereby invested with certain rights over other things and persons.15
XXXI. The rights which belong directly and immediately to persons, regard either other persons, or only certain things. Those which are annexed to<302> persons over other persons, are not obtained but with the consent of the persons themselves; who are supposed not to have given a power over them to any man promiscuously, but to some certain person. Thus, for instance, though a king happens to be made prisoner of war, his enemies have not therefore acquired his kingdom with him.
XXXII. But with respect to personal rights over things, the bare seizure of the person of the enemy, is not a sufficient title to the property of all his effects, unless we really take possession of those effects at the same time. This may be illustrated by the example given by Grotius and Puffendorf: Alexander the Great having destroyed the city of Thebes, made a present to the Thessalians of an instrument, in which the latter acknowledged that they owed the Thebans a hundred talents.
XXXIII. These are the rights which war gives us over the effects of the enemy. But Grotius pretends, that the right by which we acquire things taken in war, is so proper and peculiar to a solemn war, declared in form, that it has no force in others, as in civil wars, &c. and that in the latter, in particular, there is no change of property, but in virtue of the sentence of a judge.16
XXXIV. We may observe, however, upon this point, that in most civil wars no common judge is acknowledged. If the state is monarchical, the dispute turns either upon the succession to the crown, or upon a considerable part of the state’s pretend-<303>ing that the king has abused his power, in a manner which authorises the subject to take up arms against him.17
XXXV. In the former case, the very nature of the cause, for which the war is undertaken, occasions the two parties of the state to form, as it were, two distinct bodies, till they come to agree upon a chief by some treaty. Hence, with respect to the two parties which were at war, it is on such a treaty that the right depends, which persons may have to that which has been taken on either side; and nothing hinders, but this right may be left on the same footing, and admitted to take place in the same manner, as in public wars between two states always distinct.
XXXVI. As to other nations, who were not concerned in the war, they have no more authority to examine the validity of the acquisitions, than they have to be judges of a war made between two different states.
XXXVII. The other case, I mean an insurrection of a considerable part of the state against the reigning prince, can rarely happen, except when that prince has given room for it, either by tyranny, or by the violation of the fundamental laws of the kingdom. Thus the government is then dissolved, and the state is actually divided into two distinct and independent bodies; so that we are to form here the same judgment as in the former case.<304>
XXXVIII. For much stronger reasons does this take place in the civil wars of a republican state; in which the war, immediately of itself, destroys the sovereignty, which subsists solely in the union of its members.
XXXIX. Grotius seems to have derived his ideas on this subject from the Roman laws; for these decreed, that prisoners taken in a civil war could not be reduced to slavery. This was, as Ulpian the civilian * remarks, because they looked upon a civil war not properly as a war, but as a civil dissension; for, adds he, a real war is made between those who are enemies, and animated with a hostile spirit, which prompts them to endeavour the ruin of each other’s state. Whereas, in a civil war, however hurtful it often proves to the nation, the one party wants to save itself in one manner, and the other in another. Thus they are not enemies, and every person of the two parties remains always a citizen of the state so divided.
XL. But all this is a supposition, or fiction of right, which does not hinder what I have been saying from being true, and from taking place in general. And if, among the Romans, a person could not appropriate to himself the prisoners taken in a civil war, as real slaves, this was in virtue of a particular law received among them, and not on account of any defect of the conditions, or formalities, which, according to Grotius, are required by the law of nations, in a public or solemn war.<305>
XLI. Lastly, as to the wars of robbers and pirates, if they do not produce the effects above-mentioned, nor give to those pirates a right of appropriating what they have taken, it is because they are robbers, and enemies to mankind, and consequently persons whose acts of violence are manifestly unjust, which authorises all nations to treat them as enemies. Whereas, in other kinds of war, it is often difficult to judge on which side the right lies; so that the dispute continues, and ought to continue, undecided, with respect to those who are unconcerned in the war.18
Of the right of sovereignty acquired over the conquered.
I. Besides the effects of war, hitherto mentioned, there remains one more, the most important of all, and which we shall here consider; I mean the right of sovereignty acquired over the conquered. We have already remarked, when explaining the different ways of obtaining the supreme power, that in general it may be acquired either in a violent manner, and by the right of conquest, &c.
II. We must however observe, that war or conquest, considered in itself, is not properly the cause of this acquisition; that is, it is not the immediate origin of sovereignty. For the supreme power is founded on the tacit or express consent of the peo-<306>ple, without which the state of war still subsists; for we cannot conceive how there can be an obligation to obey a person, to whom we have promised no subjection. War then is, properly speaking, no more than the occasion of obtaining the sovereignty; as the conquered chuse rather to submit to the victor, than to expose themselves to total destruction.1
III. Besides, the acquisition of sovereignty by the right of conquest cannot, strictly speaking, pass for lawful, unless the war be just in itself, and the end proposed authorises the conqueror to carry things to such extremity, as to acquire the supreme power over the vanquished: that is to say, either our enemy must have no other means of paying what he owes us, and of indemnifying us for the damages he has committed; or our own safety must absolutely oblige us to make him dependent on us. In such circumstances, it is certain that the resistance of a vanquished enemy, authorises us to push the acts of hostility against him so far, as to reduce him entirely under our power; and we may, without injustice, take advantage of the superiority of our arms, to extort from him the consent which he ought to give us of his own accord.2
IV. These are the true principles on which sovereignty, by the right of conquest, is grounded. Hence we may conclude, that if, upon this foundation, we were to judge of the different acquisitions of this nature, few of them would be found<307> well established; for it rarely happens, that the vanquished are reduced to such extremity, as not to be able to satisfy the just pretensions of the conqueror, otherwise than by submitting themselves to his dominion.
V. Let us however observe, that the interest and tranquillity of nations require, that we should moderate the rigour of the principles above established. If he who has constrained another, by the superiority of his arms, to submit to his dominion, had undertaken a war manifestly unjust, or if the pretext, on which it is founded, be visibly frivolous in the judgment of every reasonable person, I freely confess that a sovereignty, acquired in such circumstances, would be unjust; and I see no reason, why the vanquished people should be more obliged to keep such a treaty, than a man, who had fallen into the hands of robbers, would be under an obligation to pay, at their demand, the money he had promised them for the ransom of his life and liberty.3
VI. But if the conqueror had undertaken a war for some specious reason, though perhaps at the bottom not strictly just, the common interest of mankind requires, that we should observe the engagements we have entered into with him, though extorted by a terror in itself unjust; so long, at least, as no new reason supervenes, which may lawfully exempt us from keeping our promise. For as the law of nature directs that societies, as well as individuals, should labour for their preservation, it obliges us,<308> for this reason, not indeed to consider the acts of hostility committed by an unjust conqueror as properly just, but to look upon the engagement of an express, or tacit treaty, as nevertheless valid. So that the vanquished cannot be released from observing it, under the pretext of its being caused by an unjust fear, as he might otherwise do, had he no regard to the advantages accruing from it to mankind.4
VII. These considerations will have still a greater weight, if we suppose that the conqueror, or his posterity, peaceably enjoy the sovereignty which he has acquired by right of conquest; and besides, that he govern the vanquished like a humane and generous prince. In such circumstances, a long possession, accompanied with an equitable government, may legitimate a conquest, in its beginning and principle the most unjust.5
VIII. There are modern civilians, who explain the thing somewhat differently. These maintain, that in a just war the victor acquires a full right of sovereignty over the vanquished, by the single title of conquest, independently of any convention; and even though the victor has otherwise obtained all the satisfaction, and indemnification, he could require.6
IX. The principal argument these writers make use of, is, that otherwise the conqueror could not be certain of the peaceable possession of what he has taken, or forced the conquered to give him, for his<309> just pretensions; since they might retake it from him, by the same right of war.
X. But this reason proves only that the conqueror, who has taken possession of the enemy’s country, may command in it while he holds it, and not resign it, till he has good security that he shall obtain or possess, without hazard, what is necessary for the satisfaction and indemnity, which he has a right to exact by force. But the end of a just war does not always demand, that the conqueror should acquire an absolute and perpetual right of sovereignty over the conquered. It is only a favourable occasion of obtaining it; and for that purpose, there must always be an express or tacit consent of the vanquished. Otherwise, the state of war still subsisting, the sovereignty of the conqueror has no other title than that of force, and lasts no longer than the vanquished are unable to throw off the yoke.
XI. All that can be said, is, that the neutral powers, purely because they are such, may, and ought to look upon the conqueror as the lawful possessor of the sovereignty, even though they should believe the war unjust on his side.
XII. The sovereignty thus acquired by the right of war, is generally of the absolute kind. But sometimes the vanquished enter into certain conditions with the conqueror, which limit, in some measure, the power he acquires over them. Be this as it may, it is certain that no conquest ever<310> authorises a prince to govern a people tyrannically; since, as we have before shewn, the most absolute sovereignty gives no right to oppress those who have surrendered; for even the very intention of government, and the laws of nature, equally conspire to lay the conqueror under an obligation, of governing those whom he has subdued, with moderation and equity.
XIII. There are, therefore, several precautions to be used in the exercise of the sovereignty acquired over the vanquished; such, for instance, was that prudent moderation of the ancient Romans, who confounded, in some measure, the vanquished with the victors, by hastening to incorporate them with themselves, and to make them sharers of their liberty and advantages. A piece of policy doubly salutary; which, at the same time that it rendered the condition of the vanquished more agreeable, considerably strengthened the power and empire of the Romans. “What would our empire now have been,” says Seneca, “if the vanquished had not been intermixed with the victors, by the effect of a sound policy?” “Romulus, our founder,” says Claudius in Tacitus, “was very wise with respect to most of the people he subdued, by making those, who were his enemies, the same day citizens.”7
XIV. Another moderation in victory, consists in leaving to the conquered, either kings or people, the sovereignty which they enjoyed, and not to change the form of their government. No better method can be taken to secure a conquest: and of this we have several examples in<311> ancient history, especially in that of the Romans.
XV. But if the conqueror cannot, without danger to himself, grant all these advantages to the conquered; yet things may be so moderated, that some part of the sovereignty shall be left to them, or to their kings. Even when we strip the vanquished intirely of their independency, we may still leave them their own laws, customs, and magistrates, in regard to their private and public affairs, of small importance.
XVI. We must not, above all things, deprive the vanquished of the exercise of their religion, unless they happen to be convinced of the truth of that which the conqueror professes. This complaisance is not only of itself very agreeable to the vanquished, but the conqueror is absolutely obliged to it; and he cannot, without tyranny, oppress them in this article. Not that he ought not to try to bring the vanquished to the true religion; but he should only use such means, as are proportioned to the nature of the thing, and to the end he has in view; and such as have in themselves nothing violent, or contrary to humanity.8
XVII. Let us observe, lastly, that not only humanity, but prudence also, and even the interest of the victor, require that what we have been saying, with respect to a vanquished people, should be strictly practised. It is an important maxim in politics, that it is more difficult to keep, than to conquer pro-<312>vinces. Conquests demand no more than force, but justice must preserve them. These are the principal things to be observed, in respect to the different effects of war, and to the most essential questions relative to that subject. But as we have already had occasion to make mention of the article of neutrality, it will not be improper to say something more particular about it.
I. There is a general, and a particular neutrality. The general is, when without being allied to either of the two enemies at war, we are disposed to render to each the good offices which every nation is naturally obliged to perform to other states.
II. The particular neutrality is, when we are particularly engaged to be neuter by some compact, either tacit or express.
III. The latter species of neutrality is either full and intire, when we behave alike towards both parties; or limited, as when we favour one side more than the other.
IV. We cannot lawfully constrain any person to enter into a particular neutrality; because every one is at liberty to make, or not make, particular treaties, or alliances; or at least, they are not bound to do it but by virtue of an imperfect obligation. But he, who has undertaken a just war, may oblige<313> other nations to observe an exact and general neutrality; that is to say, not to favour his enemy more than himself.
V. We shall give here an abstract, as it were, of the duties of neutral nations. They are obliged equally to put in practice, towards both parties at war, the laws of nature, as well absolute as conditional, whether these impose a perfect, or only an imperfect obligation.
VI. If they do the one any office of humanity, they ought not to refuse the like to the other, unless there be some manifest reason which engages them to do something in favour of the one, which the other had otherwise no right to demand.
VII. But they are not obliged to do offices of humanity to one party, when they expose themselves to great danger, by refusing them to the other, who has as good a right to demand them.
VIII. They ought not to furnish either party with things which serve to exercise acts of hostility, unless they are authorised to do it by some particular engagement; and in regard to those which are of no use in war, if they supply one side with them, they must also the other.
IX. They ought to use all their endeavours to bring matters to an accommodation, that the injured party may obtain satisfaction, and the war be brought to a speedy conclusion.<314>
X. But if they be under any particular engagement, they should punctually fulfill it.
XI. On the other side, those who are at war must exactly observe, towards neutral nations, the laws of sociability, and not exercise any act of hostility against them, nor suffer their country to be plundered.
XII. They may however, in case of necessity, take possession of a place situated in a neutral country; provided, that as soon as the danger is over, they restore it to the right owner, and make him satisfaction for the damages he has received.
Of public treaties in general.
I. The subject of public treaties constitutes a considerable part of the law of nations, and deserves to have its principles and rules explained with some exactness. By public treaties, we mean such agreements as can be made only by public authority, or those which sovereigns, considered as such, make with each other, concerning things which directly concern the welfare of the state. This is what distinguishes these agreements, not only from those which individuals make with each other, but also from the contracts of kings, in regard to their private affairs.1 <315>
II. What we have before observed, concerning the necessity of introducing conventions betwixt private men, and the advantages arising from them, may be applied to nations and different states. Nations may, by means of treaties, unite themselves more particularly into a society, which shall reciprocally assure them of seasonable assistance, either for the necessaries and conveniencies of life, or to provide for their greater security upon the breaking out of a war.
III. As this is the case, sovereigns are no less obliged, than individuals, inviolably to keep their word, and be faithful to their engagements. The law of nations renders this an indispensable duty; for it is evident, that were it otherwise, not only public treaties would be useless to states, but moreover, that the violation of these would throw them into a state of dissidence and continual war; that is to say, into the most terrible situation. The obligation therefore of sovereigns, in this respect, is so much the stronger, as the violation of this duty has more dangerous consequences, which interest the public felicity.2 The sanctity of an oath, which generally accompanies solemn treaties, is an additional motive to engage princes to observe them with the utmost fidelity; and certainly nothing is more shameful for sovereigns, who so rigorously punish such of their subjects as fail in their engagements, than to sport with treaties and public faith, and to look upon these only as the means of deceiving each other.
The royal word ought therefore to be inviolable, and sacred. But there is reason to apprehend, that if<316> princes are not more attentive to this point, this expression will soon degenerate into an opposite sense, in the same manner as formerly Carthaginian faith* was taken for perfidy.
IV. We must likewise observe, that the several principles already established concerning the validity of conventions in general, agree to public treaties, as well as to the contracts of individuals. In both, therefore, there must be a serious consent, properly declared, and exempt from error, fraud, and violence.
V. If treaties, made in those circumstances, be obligatory between the respective states or sovereigns, they are also binding, with regard to the subjects of each prince in particular. They oblige, as compacts between the contracting powers; but they have the force of laws, with respect to the subjects considered as such; for it is evident that two sovereigns, who conclude a treaty, lay their subjects thereby under an obligation of doing nothing contrary to it.
VI. There are several distinctions of public treaties; and 1°. some turn simply on things, to which we were before obliged by the law of nature; and others superadd some particulars to the duties of natural law.3
VII. Under the former head we may rank all those treaties, by which we are purely and simply en-<317>gaged to do no injury to others, but, on the contrary, to perform all the duties of humanity towards them. Among civilised nations, who profess to follow the laws of nature, such treaties are not necessary. Duty alone is sufficient, without a formal engagement. But among the ancients, these treaties were thought expedient, the common opinion being, that they were obliged to observe the laws of humanity only to fellow-subjects, and that they might consider all strangers as foes, and treat them as such, unless they had entered into some engagement to the contrary: and of this we have many instances in history. The profession of free-booter, or pirate, was no way shameful among several nations; and the word hostis, which the Romans used to express an enemy, originally signified no more than a stranger.
VIII. Under the second kind I comprehend all those compacts, by which two nations enter into some new, or more particular obligation; as when they formally engage to things to which they were not bound, but in virtue of an imperfect obligation, or even to which they were no ways before obliged.
IX. 2°. Treaties, by which we engage to something more than what we were obliged to, in virtue of the law of nature, are also of two kinds; some equal, others unequal.4
3°. Both are made either in time of war, or in full peace.<318>
X. Equal treaties, are those contracted with an entire equality on both sides; that is to say, when not only the engagements and promises are equal on both sides, either purely and simply, or in proportion to the strength of each contracting party; but also, when they engage on the same footing; so that neither of the parties is5 in any respect inferior to the other.
XI. These treaties are made, either with a view to commerce, or to confederacy in war, or, in short, to any other matter. With respect to commerce, for example, by stipulating that the subjects, on either side, shall be free from all custom or toll, or that no more shall be demanded of them, than of the natives of the country, &c. Equal treaties, or leagues relating to war, are, when we stipulate, for example, that each shall furnish the other an equal number of troops, ships, and other things; and this in all kinds of war, defensive as well as offensive, or in defensive only, &c. Lastly, treaties of equality may also turn upon any other matter; as when it is agreed, that one shall have no forts on the other’s frontiers; that one shall not grant protection to the other’s subjects, in some criminal cases, but order them to be seized and sent back; that one shall not give the other’s enemies passage through his country, and the like.6
XII. What we have been saying, sufficiently shews the meaning of unequal treaties. And these are, when the promises are either unequal, or such as lay harder conditions on one of the parties, than on the<319> other. The inequality of the things stipulated, is sometimes on the side of the most powerful confederate, as when he promises his assistance to the other, without requiring the like; and sometimes on the side of the inferior confederate, as when he engages to do more for the stronger, than the latter promises in return.
XIII. All the conditions of unequal treaties are not of the same nature; some there are, which though burdensome to the inferior ally, yet leave the sovereignty entire; others, on the contrary, include a diminution of the independance, and sovereignty of the inferior ally.
Thus, in the treaties between the Romans and the Carthaginians, at the end of the second Punic war, it was stipulated, that the Carthaginians should not begin any war, without the consent of the Roman people; an article which evidently diminished the sovereignty of Carthage, and made her dependent on Rome.
But the sovereignty of the inferior ally continues entire, though he engages, for example, to pay the other’s army, to defray the expences of the war, to dismantle some towns, to give hostages, to look upon all those as friends or enemies, who are friends or enemies to the other, to have no forts, or strong holds in certain parts, to avoid sailing in particular seas, to acknowledge the pre-eminence of the other, and, upon occasion, to shew reverence and honour to his power and majesty, &c.
XIV. However, though these, and other similar<320> conditions, do not diminish the sovereignty, it is certain that such treaties of inequality are often of so delicate a nature, as to require the greatest circumspection; and that if the prince, who is superior to the other in dignity, surpasses him also considerably in strength and power, it is to be feared that the former will gradually acquire an absolute sovereignty over him, especially if the confederacy be perpetual.
XV. 4°. Public treaties are also divided into real and personal. The latter are those made with a prince, purely in regard to his person, and expire with him. The former are such, as are made rather with the whole body of the state, than with the king or government, and which consequently outlive those who made them, and oblige their successors.7
XVI. To know which of these two classes every treaty belongs to, the following rules may be laid down.
1°. We must first attend to the form and phrase of the treaty, to its clauses, and the views proposed by the contracting parties. Utrum autem in rem, an in personam factum est, non minus ex verbis, quam ex mente convenientium aestimandum est.* Thus, if there be an express clause, mentioning that the treaty is perpetual, or for a certain number of years, or for the good of the state, or with the king for him and his successors, we may conclude that the treaty is real.<321>
2°. Every treaty made with a republic, is in its own nature real, because the subject, with whom we contract it, is a thing permanent.
3°. Though the government should happen to be changed from a republic into a monarchy, the treaty is still in force, because the body is still the same, and has only another chief.
4°. We must however make an exception here, which is, when it appears that the preservation of the republican government was the true cause of the treaty; as when two republics enter into an alliance, by which they agree to assist one another, against such as shall endeavour by force to alter their constitution, and deprive them of their liberties.
5°. In case of doubt, every public treaty made with a king ought to be deemed real, because, in dubious cases, the king is supposed to act as chief, and for the good of the state.
6°. Hence it follows, that as after the change of a democracy into a monarchy, the treaty is still in force, in regard to the new sovereign; so if the government, from a monarchy, becomes a republic, the treaty made with the king does not expire, unless it was manifestly personal.
7°. Every treaty of peace is real in its own nature, and ought to be kept by the successor; for so soon as the conditions of the treaty have been punctually fulfilled, the peace effectually effaces the injuries which excited the war, and restores the nations to their natural situation.
8°. If one of the confederates has fulfilled what the treaty obliged him to, and the other should die before he performs the engagements on his part, the<322> successor of the deceased king is obliged either intirely to indemnify the other party for what he has performed, or to fulfill his predecessor’s engagement.
9°. But if nothing is executed on either part, or the performances on both sides are equal, then if the treaty tends directly to the personal advantage of the king, or his family, it is evident, that so soon as he dies, or his family is extinct, the treaty must also expire.
10°. Lastly, we must observe that it is grown into a custom for successors to renew, at least in general terms, even the treaties manifestly acknowledged for real, that they may be the more strongly bound to observe them, and may not think themselves dispensed from that obligation, under a pretext that they have different ideas concerning the interests of the state, from those of their predecessors.
XVII. Concerning treaties, or alliances, it is often disputed, whether they may be lawfully made with those who do not profess the true religion? I answer, that by the law of nature there is no difficulty in this point. The right of making alliances is common to all men, and has nothing opposite to the principles of true religion; which is so far from condemning prudence and humanity, that it strongly recommends both.*
XVIII. To judge rightly of the causes which put<323> an end to public treaties, we must carefully attend to the rule of conventions in general.8
1°. A treaty, concluded for a certain time, expires at the end of the term agreed on.
2°. When a treaty is once expired, it must not be supposed to be tacitly renewed; for a new obligation is not easily presumed.
3°. And therefore, if after the treaty expires, some acts are continued, which seem conformable to the terms of the preceding alliance, they ought rather to be looked upon as simple marks of friendship and benevolence, than as a tacit renovation of the treaty.
4°. We must however make this exception, unless such acts intervene, as can bear no other construction, than that of a tacit renovation of the preceding compact. Thus, for example, if one ally has engaged to pay another a certain sum annually, and after the expiration of the term of the alliance, the same sum be paid the following year, the alliance is tacitly renewed for that year.
5°. It is in the nature of all compacts in general, that when one of the parties violates the engagements into which he had entered by treaty, the other is freed, and may refuse to stand to the agreement; for generally each article of the treaty has the force of a condition, the want of which renders it void.
6°. This is generally the case, that is to say, when there is no agreement otherwise; for sometimes this clause is inserted, that the violation of any single article of the treaty shall not break it intirely, to the end that neither party should fly from their en-<324>gagements for every slight offence. But he who, by the action of another, suffers any damage, ought to be indemnified in some shape or another.
XIX. None but the sovereign can make alliances and treaties, either by himself, or by his ministers. Treaties concluded by ministers, oblige the sovereign and the state, only when the ministers have been duly authorised to make them, and have done nothing contrary to their orders and instructions. And here it may be observed, that among the Romans the word foedus, a public compact, or solemn agreement, signified a treaty made by order of the sovereign power, or that had been afterwards ratified; but when public persons, or ministers of state, had promised something relating to the sovereign power, without advice and command from it, this was called sponsio, or a simple promise and engagement.9
XX. In general it is certain, that when ministers, without the order of their sovereign, conclude a treaty concerning public affairs, the latter is not obliged to stand to it; and the minister, who has entered into the negotiation without instructions, may be punished according to the exigency of the case. However, there may be circumstances in which a prince is obliged, either by the rules of prudence, or even those of justice and equity, to ratify a treaty, though concluded without his orders.10
XXI. When a sovereign is informed of a treaty, made by one of his ministers without his orders,<325> his silence alone does not imply a ratification, unless it be accompanied with some act, or other circumstance, which cannot well bear another explication. And much more, if the agreement was made upon condition of its being ratified by the sovereign, it is of no force till he has ratified it in a formal manner.
Of compacts made with an enemy.
I. Among public compacts, those which suppose a state of war, and are made with an enemy, deserve particular attention. Of these there are two kinds; some which do not put an end to the war, but only moderate or suspend the acts of hostility; and others, which end the war intirely. But before we consider these compacts in particular, let us inquire into the validity of them in general.1
Whether we ought to keep our faith given to an enemy?
II. This question is certainly one of the most curious and important belonging to the law of nations. Grotius and Puffendorf are not agreed in this point. The former maintains, that all compacts made with an enemy ought to be kept with an inviolable fidelity. But Puffendorf is somewhat dubious with respect to those compacts, which leave us in a state of war, without a design to remove it. Let us therefore endeavour to establish some princi-<326>ples, by means of which we may determine with respect to these two opinions.
III. I observe, 1°. That though war of itself destroys the state of society between two nations, we must not thence conclude that it is subjected to no law, and that all right and obligation are absolutely at an end between enemies.
2°. On the contrary, every body grants that there is a right of war, obligatory of itself, between enemies, and which they cannot violate, without being defective in their duty. This is what we have proved before, by shewing that there are just and unjust wars; and that even in the justest, it is not allowable to push acts of hostility to the utmost extremity, but that we ought to keep within certain bounds; and consequently, that there are things unjust and unlawful, even with respect to an enemy. Since therefore war does not, of itself, subvert all the laws of society, we cannot from this alone conclude, that because two nations are at war with each other, they are dispensed from keeping their word, and from fulfilling the engagements they have made with each other, during the course of the war.
3°. As war is in itself a very great evil, it is the common interest of nations, not to deprive themselves voluntarily of the means which prudence suggests to moderate the rigour, and to suspend the effects of it. On the contrary, it is their duty to endeavour to procure such means, and to make use of them upon occasion; so far at least, as the attainment of the lawful end of war will permit. Now there is nothing but public faith that can procure,<327> to the parties engaged in war, the liberty to take breath; nothing but this can secure to towns, that have surrendered, the several rights which they have reserved by capitulation. What advantage would a nation gain, or rather, what is it they would not lose, if they were to have no regard to their faith given to an enemy, and if they looked upon compacts, made in such circumstances, only as the means of circumventing one another? Surely it is not to be supposed, that the law of nature approves of maxims so manifestly opposite to the common good of mankind. Besides, we ought never to wage war, merely for the sake of it, but only through necessity, in order to obtain a just and reasonable satisfaction, and a solid peace; from whence it evidently follows, that the right of war between enemies cannot extend so far, as to render hostilities perpetual, and to create an invincible obstacle to the re-establishment of the public tranquillity.
4°. And yet this would certainly be the consequence, if the law of nature did not lay us under an indispensable obligation of performing whatever agreement we have voluntarily made with the enemy during the war; whether these agreements tend only to suspend, or moderate acts of hostility, or whether they are designed to make them cease intirely, and to re-establish peace.
For, in short, there are only two ways of obtaining peace. The first is, the total and entire destruction of our enemy; and the second is, the entering into articles of treaty with him. If therefore treaties and compacts, made between enemies, were not in themselves sacred and inviolable, there would<328> be no other means of procuring a solid peace, than carrying on the war to the utmost extremity, and to the total ruin of our enemies. But who does not see that a principle, which tends to the destruction of mankind, is directly contrary to the law of nature and nations, whose principal end is the preservation and happiness of human society?
5°. There is no distinction, in this respect, between the different treaties that we may enter into with an enemy; for the obligation which the laws of nature lay upon us, to observe them inviolably, relates as well to those which do not put an end to the war, as to those which tend to re-establish peace. There is no medium, and we must lay it down as a general rule, that all compacts with an enemy are obligatory, or that none of them are really such.
And, indeed, if it were lawful, for instance, to break a solemn truce, and to detain, without any reason for it, people, to whom we had given passports, &c. what harm would there be in circumventing an enemy, under a pretext of treating of peace? When we enter into a negotiation of this kind, we are still enemies; and it is properly but a kind of truce, which we agree to, in order to see if there be any means of coming to an accommodation. If the negotiations prove unsuccessful, it is not then a new war which we begin, since the differences, that occasioned our taking up arms, are not yet adjusted; we only continue the acts of hostility which had been suspended for some time: so that we could no more rely on the enemy’s sincerity, with respect to compacts which tend to re-establish peace,<329> than to those whose end is only to suspend, or moderate acts of hostility. Thus distrusts would be continual, wars eternal, and a solid peace unattainable.
6°. The more frequent unnecessary wars are become, through the avarice and ambition of sovereigns, the more a steady adherence to the principles, here established, is indispensably necessary for the interest of mankind. Cicero therefore justly affirms, that there is a right of war, which ought to be observed between the contending parties, and that the enemy retains certain rights, notwithstanding the war.*
Nor is it sufficient to say, as Puffendorf does,2 that it is a custom which, among others, has obtained among civilized nations, out of particular respect to military bravery, that all compacts made with an enemy ought to be looked upon as valid. He should also have added, that this is an indispensable duty, that justice requires it, that it is not in the power of nations to establish things on another footing, and that they cannot justly deviate from the rules which the law of nature prescribes, in this case, for their common advantage.
IV. It will not be difficult, by means of the principles here established, to answer the arguments by which Puffendorf pretends to shew, that all compacts made with an enemy, are not of themselves obligatory. We shall be content with observing, 1°. that those arguments prove nothing, because<330> they prove too much, &c. and 2°. all that can be concluded from them is, that we ought to act prudently, and take proper precautions before we pass our word, or enter into any engagement with an enemy; because mankind are apt to break their promises for their own interest, especially when they have to deal with people whom they hate, or by whom they are hated.
V. But it will be said, is it not a principle of the law of nature, that all conventions and treaties, extorted by injustice and violence, are void of themselves; and consequently, that he who has been forced to make them against his will, may lawfully break his word, if he thinks he can do it with safety?
Violence and force are the characteristics of war; and it is generally the conqueror that obliges the vanquished to treat with him, and by the superiority of his arms, constrains them to accept the conditions he proposes to them, whether the war he has undertaken be just or not. How then is it possible, that the law of nature and nations should declare treaties, made in those circumstances, to be sacred and inviolable?
I answer, that however true the principle on which this objection is founded, may be in itself, yet we cannot apply it, in all its extent, to the present question.3
The common interest of mankind requires, that we should make some difference between promises extorted by fear, among private persons, and those to which a sovereign prince or people is constrained, by the superiority of the arms of a conqueror, whose<331> pretensions were unjust. The law of nations then makes an exception here to the general rule of the law of nature, which disannuls conventions extorted by unjust fear; or, in other words, the law of nations holds for just on both sides, that dread or apprehension which induces enemies to treat with each other, during the course of a war; for otherwise, there would be no method, either of moderating its fury, or of putting a final period to it, as we have already demonstrated.
VI. But that nothing may be omitted, relating to this question, we shall add something for the further illustration of what we have been saying.
First then, it is necessary, I think, to distinguish here, whether he, who by the superiority of his arms has compelled his enemy to treat with him, had undertaken the war without reason; or whether he could alledge some specious pretext for it. If the conqueror had undertaken the war for some plausible reason, though perhaps unjust at bottom, then it is certainly the interest of mankind, that the law of nations should make us regard the treaties, concluded in such circumstances, as valid and obligatory; so that the conquered cannot refuse to observe them, under a pretext that they were extorted by an unjust fear.
But if we suppose that the war was undertaken without reason, or if the motive alledged be manifestly frivolous, or unjust, as Alexander’s going to subdue remote nations, who had never heard of him, &c. As such a war is a downright robbery, I confess I do not think the vanquished more obliged to observe the treaty to which they were compelled,<332> than a man, fallen into the hands of thieves, is bound to pay a sum of money, which he had promised them, as a ransom for his life or liberty.4
VII. We must also add, as a very necessary remark, that even supposing the war was undertaken for some apparent and reasonable cause, if the treaty, which the conqueror imposes on the vanquished, includes some condition manifestly barbarous, and intirely contrary to humanity; we cannot, in those circumstances, deny the vanquished a right of receding from their engagement, and of beginning the war afresh, in order to free themselves, if they can, from the hard and inhuman conditions to which they were subjected, by the abuse their enemy made of his victory, contrary to the laws of humanity. The justest war does not authorise the conqueror to keep no measures, or to use all liberties with respect to the vanquished; and he cannot reasonably complain of the breaking of a treaty, the conditions of which are both unjust in themselves, and full of barbarity and cruelty.
VIII. The Roman history furnishes us with an example to this purpose, which deserves our notice.
The Privernates had been several times subdued by the Romans, and as often revolted; but their city was at last retaken by the consul Plautius. In these distressed circumstances, they sent ambassadors to Rome to sue for peace. Upon a senator’s asking them what punishment they thought they deserved; one of them answered, That which is due to men who think themselves worthy of liberty. Then the consul<333> asked them, whether there was any room to hope, that they would observe the peace, if their faults were pardoned? “The peace shall be perpetual between us,” replied the ambassador, “and we shall faithfully observe it, if the conditions you lay upon us are just and reasonable; but if they are hard and dishonourable, the peace will not be of long continuance, and we shall very soon break it.”
Though some of the senators were offended at this answer, yet most of them approved of it, and said that it was worthy of a man, and of a man who was born free: acknowledging therefore the rights of human nature, they cried out, that those alone deserved to be citizens of Rome, who esteemed nothing in comparison of liberty. Thus the very persons, who were at first threatened with punishment, were admitted to the privilege of citizens, and obtained the conditions they wanted; and the generous refusal of the Privernates to comply with the terms of a dishonourable treaty, gained them the honour of being incorporated into a state, which at that time could boast of the bravest, and most virtuous subjects in the universe.*
Let us therefore conclude, that a due medium is to be observed, that we ought inviolably to observe treaties made with an enemy, and that no exception of an unjust fear should authorise us to break our promise, unless the war was a downright robbery, or the conditions imposed on us were highly unjust, and full of barbarity and cruelty.
IX. There is still another case, in which we may<334> avoid the crime of perfidiousness, and yet not perform what we have promised to an enemy; which is, when a certain condition, supposed to be the basis of the engagement, is wanting. This is a consequence of the very nature of compacts; by this principle, the infidelity of one of the contracting parties sets the other at liberty: for according to the common rule, all the articles of the same agreement are included one in the other, in the manner of a condition, as if a person were expressly to say, I will do such or such a thing, provided you do so or so.*
Of compacts with an enemy, which do not put an end to the war.
I. Among those compacts which leave us in a state of war, one of the principal is a truce.
A truce is an agreement, by which we engage to forbear all acts of hostility for some time, the war still continuing.1
II. A truce is not therefore a peace, for the war continues. But if we agree, for instance, to certain contributions during the war, as these are granted only to prevent acts of hostility, they ought to cease during the truce; since, at that time, such acts are not lawful. And, on the contrary, if it be agreed<335> that any particular thing is to take place in time of peace, the time of truce is not included.
III. As every truce leaves us in a state of war, it follows, that after the term is expired, there is no necessity that war should be declared again; because we do not commence a new war, but only continue that in which we were already engaged.
IV. This principle, that the war renewed after a truce is not a new war, may be applied to several other cases. In a treaty of peace, concluded between the bishop of Trent and the Venetians, it was agreed, that each party should be put in possession of what they enjoyed before the last war.
In the beginning of this war the bishop had taken a castle from the Venetians, which they afterwards retook. The bishop refused to give it up, under a pretext that it had been retaken after several truces, which had been made during the course of that war. The dispute was evidently to be decided in favour of the Venetians.
V. There are truces of several kinds.
1°. Sometimes, during the truce, the armies on both sides are in the field, and in motion; and these are generally limited to a few days. At other times the parties lay down their arms, and retire to their own countries; and in this case the truces are of longer duration.
2°. There is a general truce for all the territories and dominions of both parties; and a particular truce restrained to particular places; as for example, by sea, and not by land, &c.<336>
3°. Lastly, there is an absolute, indeterminate, and general truce, and a truce limited and determined to certain things; for example, to bury the dead, or if a besieged town has obtained a truce, only to be sheltered from certain attacks, or from particular acts of hostility, such as ravaging the country.2
VI. We must also observe, that, strictly speaking, a truce can be made only by express agreement; and that it is very difficult to establish a treaty of this kind on the footing of a tacit convention, unless the facts are such in themselves, and in their circumstances, that they can be referred to no other principle, than to a sincere design of suspending acts of hostility for a time.
Thus, though for a time we abstain from acts of hostility, the enemy cannot from that alone conclude, that we have consented to a truce.3
VII. The nature of a truce sufficiently shews what the effects of it are.
1°. If the truce be general and absolute, all acts of hostility ought, generally speaking, to cease, both with respect to persons and things; but this should not hinder us, during the truce, to raise new troops, erect magazines, repair fortifications, &c. unless there be some formal convention to the contrary; for these are not in themselves acts of hostility, but defensive precautions, which may be taken in time of peace.
2°. It is a violation of the truce, to seize on any place possessed by the enemy, by corrupting the gar-<337>rison. It is also evident, that we cannot justly, during a truce, take possession of places deserted by the enemy, but really belonging to him, whether the garrison were withdrawn before or after the truce.
3°. In consequence hereof, we must restore those things belonging to the enemy, which during the truce have accidentally fallen into our hands, even though they had been formerly our property.
4°. During a truce, it is allowed to pass and repass from one place to another, but without any train or attendance that may give umbrage.4
VIII. And here it may be asked, whether they who, by any unexpected and inevitable accident, are found unfortunately in the enemy’s country, at the expiration of a truce, can be detained prisoners, or ought to have the liberty of retiring? Grotius and Puffendorf maintain, that by the right of war we may detain them as prisoners; but Grotius adds, that it is certainly more humane and generous, not to insist on such a right. I am of opinion, that it is the consequence of a treaty of truce, that we should set such persons at liberty: for since, in virtue of that engagement, we are obliged to grant them free egress and regress, during the time of the truce; we ought also to grant them the same permission after the truce is expired, if it appears manifestly that a superior force, or an unexpected accident, has hindered them from making use of it during the time agreed upon. Otherwise, as these accidents may happen every day, such a permission would often become a snare to make a great many<338> people fall into the hands of the enemy. Such are the principal effects of an absolute and general truce.
IX. With regard to a particular truce, determined to certain things, its effects are limited by the particular nature of the agreement.
1°. Thus if a truce be granted only for burying the dead, we ought not to undertake any thing new, which may alter our situation; for instance, we cannot, during that time, retire into a more secure post, nor intrench ourselves, &c. for he, who has granted a short truce for the interment of the dead, has granted it for that purpose only, and there is no reason to extend it beyond the case agreed on. Hence it follows, that if he, to whom such a truce has been allowed, should take advantage of it to intrench himself, for example, or for some other use, the other party would have a right to prevent him by force. The former could not complain; for it never could be reasonably pretended, that a truce, which was allowed for the interment of the dead, and restrained to that single act, gives a right to undertake, and carry on any other thing undisturbed. The only obligation it imposes on the person who has granted it, is, not forcibly to oppose the interment of the dead; though Puffendorf, indeed, is of a contrary opinion.*
2°. It is in consequence of the same principles, that if we suppose that by the truce persons only, and not things, are protected from acts of hostility; in this case, if in order to defend our goods we<339> wound any person, it is not a breach of the truce; for when the security of persons on both sides is agreed on, the right of defending against pillage is also reserved. And hence the security of persons is not general, but only for those who go and come without design to take any thing from the enemy, with whom such limited truce is made.5
X. Every truce obliges the contracting parties, from the moment the agreement is concluded. But the subjects on both sides are under no obligation in this respect, till the truce has been solemnly notified. Hence it follows, that if before this notification the subjects commit any acts of hostility, or do something contrary to the truce, they are liable to no punishment. The powers, however, who have concluded the truce, ought to indemnify those that have suffered, and to restore things, as much as possible, to their former state.6
XI. Lastly, if the truce should happen to be violated on one side, the other is certainly at liberty to proceed to acts of hostility, without any new declaration. Yet when it is agreed, that he who first breaks the truce shall pay a certain fine; if he pays the fine, or suffers the penalty, the other has not a right to begin acts of hostility, before the expiration of the term: but besides the penalty stipulated, the injured party has a right to demand an indemnification of what he has suffered by the violation of the truce. It is to be observed however, that the actions of private persons do not break a truce, unless the sovereign has some hand in them, either by order, or<340> by approbation; and he is supposed to approve what has been done, if he will neither punish, nor deliver up the offender, or if he refuses to restore the things taken during the cessation of arms.7
XII. Safe conducts are also compacts made between enemies, and deserve to be considered. By a safe conduct, we understand a privilege granted to some person of the enemy’s party, without a cessation of arms; by which he has free passage and return, and is in no danger of being molested.8
XIII. The several questions relating to safe conducts may be decided, either by the nature of the privilege granted, or by the general rules of right interpretation.9
1°. A safe conduct granted to soldiers, extends not only to inferior officers, but also to those who command in chief; because the natural and ordinary use of the word has determined it so.
2°. If leave be given to go to a certain part, it implies one also to return, otherwise the former permission would be often useless. There may, however, be cases, in which the one does not imply the other.
3°. He that has had leave to come, has not, generally speaking, liberty to send another in his place; and, on the contrary, he who has had a permission to send another person, cannot come himself; because these are two different things, and the permission ought to be naturally restrained to the person himself, to whom it was granted; for perhaps it would not have been given to another.<341>
4°. A father who has obtained a pass-port, cannot take his son with him, nor a husband his wife.
5°. As to servants, though not mentioned, it shall be presumed to be allowed to take one or two, or even more, according to the quality of the person.
6°. In a dubious case, and generally speaking, licence to pass freely, does not cease by the death of him who has granted it; the successor, however, may for good reasons revoke it: but in such a case the person, to whom the pass-port has been granted, ought to have notice given him, and the necessary time allowed him for betaking himself to a place of safety.
7°. A safe conduct, granted during pleasure, imports of itself a continuation of safe conduct, till expressly revoked; for otherwise, the will is supposed to subsist still the same, whatever time may be elapsed: but such a safe conduct expires, if the person who has given it, is no longer in the employment, in virtue of which he was impowered to grant such security.
XIV. The redemption of captives is also a compact often made, without putting an end to the war. The ancient Romans were very backward in the ransoming of prisoners. Their practice was to examine whether those, who were taken by the enemy, had observed the laws of military discipline, and consequently, whether they deserved to be ransomed. But the side of rigour generally prevailed, as most advantageous to the republic.10
XV. Yet in general, it is more agreeable, both to the good of the state, and to humanity, to ransom<342> prisoners; unless experience convinces us, that it is necessary to use that severity towards them, in order to prevent or redress greater evils, which would otherwise be unavoidable.
XVI. An agreement made for the ransom of a prisoner cannot be revoked, under a pretext that he is found to be much richer than we imagined: for this circumstance, of the prisoner’s being more or less rich, has no relation to the engagement; so that if his ransom were to be settled by his worth, that condition should have been specified in the contract.11
XVII. As prisoners of war are not now made slaves, the captor has a right to nothing but what he actually takes: hence money, or other things, which a prisoner has found means to conceal, certainly remain his property, and he may consequently make use of them to pay his ransom. The enemy cannot take possession of what they know nothing of; and the prisoner lies under no obligation to make a discovery of all his effects.
XVIII. There is also another question, whether the heir of a prisoner of war is obliged to pay the ransom, which the deceased had agreed upon? The answer is easy, in my opinion. If the prisoner died in captivity, the heir owes nothing, for the promise of the deceased was made upon condition, that he should be set at liberty: but if he was set at liberty before he died, the heir is certainly chargeable with the ransom.<343>
XIX. One question more, is, whether a prisoner, who was released on condition of releasing another, is obliged to return to prison, if the other dies before he has obtained his releasement? I answer, that the released prisoner is not obliged to return into custody, for that was not stipulated in the agreement; neither is it just that he should enjoy his liberty for nothing. He must therefore give an indemnification, or pay the full value of what he could not perform.
Of compacts made, during the war, by subordinate powers, as generals of armies, or other commanders.
I. All that has been hitherto said, concerning compacts between enemies, relates to those made by sovereign powers. But since princes do not always conclude such agreements themselves, we must now enquire into treaties made by generals, or other inferior commanders.
II. In order to know whether these engagements oblige the sovereign, the following principles will direct us.
1°. Since every person may enter into an engagement, either by himself or by another, it is plain that the sovereign is bound by the compacts made by his ministers or officers, in conse-<344>quence of the full powers and orders expressly given them.
2°. He that gives a man a certain power, is reasonably supposed to have given him whatever is a necessary consequence and appendage of that power, and without which it cannot be exercised. But he is not supposed to have granted him any thing further.
3°. If he, who has had a commission to treat, has kept within the bounds of the power annexed to his office, though he acts contrary to his private instructions, the sovereign is to abide by what he has done; otherwise we could never depend on engagements contracted by proxy.
4°. A prince is also obliged by the act of his ministers and officers, though done without his orders, if he has ratified the engagements they have made, either by an express consent, and then there is no difficulty, or in a tacit manner; that is to say, if being informed of what has passed, he yet permits things to be done, or does them himself, which cannot reasonably be referred to any other cause, than the intention of executing the engagements of his minister, though contracted without his participation.
5°. The sovereign may also be obliged to execute the engagements contracted by his ministers without his orders, by the law of nature, which forbids us to enrich ourselves at another’s expence. Equity requires, that in such circumstances we should exactly observe the conditions of the contract, though concluded by ministers who had not full powers.<345>
6°. These are the general principles of natural equity, in virtue of which sovereigns may be more or less obliged to stand to the agreement of their ministers. But to what has been said, we must add this general exception: unless the laws and customs of the country have regulated it otherwise, and these be sufficiently known to the persons with whom the agreement is made.
7°. Lastly, if a public minister exceeds his commission, so that he cannot perform what he has promised, and his master is not obliged to it, he himself is certainly bound to indemnify the person with whom he has treated. But if there should be any deceit on his part, he may be punished for it, and his person, or his goods, or both, are liable to be seized, in order to make a recompence.1
III. Let us apply these general principles to particular examples.
1°. A commander in chief cannot enter into a treaty that regards the causes and consequences of the war; for the power of making war, in whatever extent it has been given, does not imply the power of finishing it.
2°. Neither does it belong to generals to grant truces for a considerable space of time; for 1°. that does not necessarily depend on their commission. 2°. The thing is of too great consequence to be left entirely to their discretion. 3°. And lastly, circumstances are not generally so pressing, as not to admit of time to consult the sovereign; which a general ought to do, both in duty and prudence, as much as possible, even with respect to things which he has a power to transact of himself.<346>
Much less, therefore, can generals conclude these kinds of truces, which withdraw all the appearance of war, and come very near a real peace.
3°. With respect to truces of a short duration, it is certainly in the power of a general to make them; for example, to bury the dead, &c.2
IV. Lieutenant-generals, or even inferior commanders, may also make particular truces, during the attack, for instance, of a body of the enemy intrenched, or in the siege of a town; for this being often very necessary, it is reasonably presumed, that such a power must needs be included in the extent of their commission.
V. But a question here arises, whether these particular truces oblige only the officers who granted them, and the troops under their command, or whether they bind the other officers, and even the commander in chief? Grotius declares for the first opinion, though the second appears to me the best founded; for 1°. since we suppose that it is in consequence of the tacit consent of the sovereign, that such a truce has been granted by an inferior commander, no other officer, whether equal or superior, can break the agreement, without indirectly wounding the authority of the sovereign.
2°. Besides, this would lay a foundation for fraud and distrusts, which might tend to render the use of truces, so necessary on several occasions, useless and impracticable.3
VI. It does not belong to a general to release per-<347>sons taken in war, nor to dispose of conquered sovereignties and lands.4
VII. But it is certainly in the power of generals to grant, or leave things, which are not as yet actually possessed: because in war many cities, for example, and often men, surrender themselves, upon condition of preserving their lives and liberties, or sometimes their goods; concerning which the present circumstances do not commonly allow time sufficient to consult the sovereign. Inferior commanders ought also to have this right, concerning things within the extent of their commission.
VIII. In fine, by the principles here established, we may easily judge of the conduct of the Roman people, with respect to Bituitus king of the Arverni, and to the affair of the Caudine Forks.
Of compacts made with an enemy by private persons.
I. It sometimes happens in war, that private persons, whether soldiers or others, make compacts with an enemy. Cicero justly remarks, that if a private person, constrained by necessity, has promised any thing to the enemy, he ought religiously to keep his word.* <348>
II. And, indeed, all the principles hitherto established, manifestly prove the justice and necessity of this duty. Besides, unless this be allowed, frequent obstacles would be put to liberty, and an occasion given for massacres, &c.
III. But though these compacts are valid in themselves, yet it is evident that no private person has a right to alienate public property; for this is not allowed even to generals of armies.1
IV. With respect to the actions and effects of each individual, though the covenants made with the enemy on these affairs may sometimes be prejudicial to the state, they are binding nevertheless. Whatever tends to avoid a greater evil, though detrimental in itself, ought to be considered as a public good; as for example, when we promise to pay certain contributions to prevent pillage, or the burning of places, &c. Even the laws of the state cannot, without injustice, deprive individuals of the right of providing for their own safety, by imposing too burdensome an obligation on the subjects, entirely repugnant to nature and reason.
V. It is in consequence of these principles that we think a captive bound to perform the promise he has made of returning to prison. Without this he would not be suffered to go home; and it is certainly better for him, and for the state, that he should have this permission for a time, than that he remain always in captivity. It was, therefore, to fulfill his duty, that Re-<349>gulus returned to Carthage, and surrendered himself into the hands of the enemy.*
VI. We must judge, in like manner, of the promise by which a prisoner engages not to bear arms against the releaser. In vain would it be objected, that such an engagement is contrary to the duty we owe to our country. It is no way contrary to the duty of a good citizen, to procure his liberty by promising to forbear a thing which it is in the enemy’s power to hinder. His country loses nothing by that, but rather gains; since a prisoner, so long as he is not released, is as useless to it, as if he were really dead.
VII. If a prisoner has promised not to make his escape, he ought certainly to keep his word; even though he was in fetters when he made it. But if a person has given his word, on condition that he should not be confined in that manner, he may break it, if he be laid in irons.
VIII. But here some will ask, whether private men, upon refusing to perform what they have promised to the enemy, may be compelled to it by the sovereign? I answer, certainly: otherwise it would be to no purpose, that they were bound by a promise, if no one could compel them to perform it.2 <350>
Of public compacts which put an end to war.
I. Compacts which put an end to war, are either principals or accessories. Principals are those which terminate the war, either by themselves, as a treaty of peace; or by a consequence of what has been agreed upon, as when the end of the war is referred to the decision of lot, to the success of a combat, or to the judgment of an arbitrator. Accessories are such, as are sometimes joined to the principal compacts, in order to confirm them, and to render the execution of them more certain. Such are hostages, pledges, and guarantees.1
II. We have already treated of single combats agreed on by both parties, and of arbitrators, considered as means of hindering or terminating a war: it now only remains that we speak of treaties of peace.
III. The first question which presents itself on this subject is, whether compacts, which terminate a war, can be disannulled by the exception of an unjust fear which has extorted them?2
After the principles above established, to shew that we ought to keep our faith given to an enemy, it is not necessary to prove this point again. Of all public conventions, treaties of peace are those which a nation ought to look upon as most sacred and in-<351>violable, since nothing is of greater importance to the repose and tranquillity of mankind. As princes and nations have no common judge, to take cognizance of their differences, and to decide concerning the justice of a war, we could never depend on a treaty of peace, if the exception of an unjust fear was in this case to be generally admitted. I say generally, for when the injustice of the conditions of the peace is highly evident, and the unjust conqueror abuses his victory so far, as to impose the hardest, cruellest, and most intolerable conditions on the vanquished, the law of nations cannot authorise such treaties, nor lay an obligation on the vanquished tamely to submit to them. Let us also add, that though the law of nations ordains, that, except in the case here mentioned, treaties of peace are to be faithfully observed, and cannot be disannulled, under a pretext of an unjust constraint; it is nevertheless certain, that the conqueror cannot in conscience take the advantage of such a treaty, and that he is obliged, by internal justice, to restore all that he has taken in an unjust war.
IV. Another question is, to know whether a sovereign, or a state, is obliged to observe treaties of peace which they have made with their rebellious subjects? I answer, 1°. that when a sovereign has reduced rebellious subjects by force of arms, he may deal with them as he sees best. 2°. But if he has entered into any accommodation with them, he is thereby supposed to have pardoned them what is past; so that he cannot lawfully refuse to keep his word, under a pretext that he has given it to rebellious sub-<352>jects. This obligation is so much the more inviolable, as princes are apt to give the name of rebellion to a resistance, by which the subject only maintains his just rights, and opposes the violation of the most essential engagements of sovereigns. History furnishes but too many examples of this kind.3
V. None but he who has the power of making war, has a right to terminate it by a treaty of peace. In a word, this is an essential part of sovereignty. But can a king, who is a prisoner, make a treaty of peace, which shall be valid, and binding to a nation? I think not, for there is no probability, that the people would have conferred the supreme power upon one, with a right to exercise it, even in matters of the greatest importance, at a time when he is not master of his own person. But with respect to contracts which a king, though a prisoner, has made concerning what belongs to him in private, they are certainly valid, according to the principles established in the preceding chapter. But what shall we say of a king who is in exile? If he has no dependance upon any person, it is undoubtedly in his power to make peace.4
VI. To know for certainty what things a king can dispose of by a treaty of peace, we need only consider the nature of the sovereignty, and the manner in which he possesses it.
1°. In patrimonial kingdoms, considered in themselves, nothing hinders but that the monarch may alienate the sovereignty, or a part of it.
2°. But princes, who hold the sovereignty only<353> in an usufructuary manner, cannot by any treaty alienate it, either in whole or in part. To render such alienations valid, the consent of the body of the people, or of the states of the kingdom, is necessary.
3°. With respect to the crown domains, or the goods of the kingdom, it is not generally in the power of the sovereign to alienate them.
4°. With regard to the effects of private subjects, the sovereign, as such, has a transcendental or supereminent right over the goods and fortunes of private men; consequently he may give them up, as often as the public advantage or necessity requires it; but with this consideration, that the state ought to indemnify the subject for the loss he has sustained beyond his own proportion.5
VII. For the better interpretation of the articles of a treaty of peace, we need only attend to the general rules of interpretation, and the intention of the contracting parties.
1°. In all treaties of peace, if there be no clause to the contrary, it is presumed that the parties hold themselves reciprocally discharged from all damages occasioned by the war. Hence the clauses of general amnesty are only for the greater precaution.
2°. But the debts between individuals, contracted before the war, and the payment of which could not be exacted during the war, are not to be accounted forgiven by the treaty of peace.
3°. Unknown injuries, whether committed before, or during the war, are supposed to be com-<354>prehended in the general terms, by which we forgive the enemy the evil he has done us.
4°. Whatever has been taken since the conclusion of the peace, must certainly be restored.
5°. If the time be limited, in which the conditions of peace are to be performed, it must be interpreted in the strictest sense; so that when it is expired, the least delay is inexcusable, unless it proceeds from a superior force, or it manifestly appears that it is owing to no bad design.
6°. It is lastly to be observed, that every treaty of peace is of itself perpetual, and, as it were, eternal in its nature; that is to say, the parties are supposed to have agreed never to take up arms on account of the differences which occasioned the war, and for the future to look upon them as entirely at an end.6
VIII. It is also an important question to know, when a peace may be looked upon as broken.
1°. Some distinguish between breaking a peace, and giving a new occasion of war. To break a peace, is to violate an article of the treaty; but to give a new occasion of war, is to take up arms for a new reason not mentioned in the treaty.
2°. But when we give a new occasion of war in this manner, the treaty is by such means indirectly broken, if we refuse to make satisfaction for the offence: for then the offended having a right to take up arms, and to treat the offender as an enemy, against whom every thing is lawful, he must also certainly dispense with observing the conditions of the peace, though the treaty has not been formally broken with<355> respect to its tenor. Besides, this distinction cannot be much used at present; because treaties of peace are conceived in such a manner, as to include an engagement to live for the future in good friendship, in all respects. We must therefore conclude, that every new act of unjust hostility is an infringement of the peace.
3°. As to those who only repel force by force, they by no means break the peace.
4°. When a peace is concluded with several allies of him with whom the treaty has been made, the peace is not broken, if one of those allies takes up arms, unless it has been concluded on that footing. But this is what cannot be presumed, and certainly they who thus invade us without the assistance of others, shall be considered as the breakers of the peace.
5°. Acts of violence or hostility, which some subjects may commit of their own accord, cannot break the peace, except we suppose that the sovereign approves them; and this is presumed, if he knows the fact, has power to punish it, and neglects to do so.
6°. The peace is supposed to be broken, when, without a lawful reason, acts of hostility are committed, not only against the whole body of a state, but also against private persons; for the end of a treaty of peace is, that every subject should, for the future, live in perfect security.
7°. The peace is certainly broken by a contravention to the clear and express articles of the treaty. Some civilians, however, distinguish between the articles of great importance, and those of small im-<356>portance. But this distinction is not only uncertain in itself, but also very difficult and delicate in its application. In general, all the articles of a treaty ought to be looked upon as important enough to be observed. We must, however, pay some regard to what is required by humanity, and rather pardon slight faults, than pursue the reparation of them by arms.
8°. If one of the parties is, by an absolute necessity, reduced to an impossibility of performing his engagements, we are not for that to look upon the peace as broken; but the other party ought either to wait some time for the performance of what has been promised, if there be still any hope of it, or he may demand a reasonable equivalent.
9°. Even when there is treachery on one side, it is certainly at the choice of the innocent party to let the peace subsist; and it would be ridiculous to pretend, that he who first infringes the peace can disengage himself from the obligation which he lay under, by acting contrary to that very obligation.7
IX. To treaties of peace, for the security of their execution, are sometimes joined hostages, pledges, and guarantees. Hostages are of several sorts; for they either give themselves voluntarily, or are given by order of the sovereign, or they are forcibly taken by the enemy. Nothing, for instance, is at present more common, than to carry off hostages for the security of contributions.8
X. The sovereign may, in virtue of his autho-<357>rity, oblige some of his subjects to put themselves into the hands of the enemy as hostages; for if he has a right, when necessity requires it, to expose them to the danger of their lives, much more may he engage their corporal liberty. But on the other hand, the state ought certainly to indemnify the hostages for the losses they may have sustained for the good of the society.
XI. Hostages are demanded, and given, for the security of the execution of some engagement; therefore it is necessary that they should be retained, in such manner as shall be judged proper, till the performance of what has been agreed on. Hence it follows that an hostage, who has made himself such voluntarily, or he who has been given by the sovereign, cannot make his escape. Grotius, however, grants this liberty to the latter; but his opinion does not seem to be well founded: for either it was the intention of the state, that the hostage should not remain in the hands of the enemy; or the state had not the power of obliging the hostage to remain. The former is manifestly false, for otherwise the hostage could be no security, and the convention would be illusive. Nor is the latter more true; for if the prince, in virtue of his transcendental property, can expose the lives of the citizens, why may he not engage their liberty? Thus Grotius himself agrees, that the Romans were obliged to return Clelia to Porsenna. But the case is not precisely the same, with respect to hostages taken by the enemy; for these have a right to make their escape, so long as they have not given their word to the contrary.9 <358>
XII. It is a question often controverted, whether he, to whom hostages are given, can put them to death, in case the enemy do not perform their engagement? I answer, that hostages themselves cannot give the enemy any power over their lives, of which they are not masters. As to the state, it has certainly the power of exposing the lives of the subjects, when the public good requires it. But in this case, all that the public good requires, is to engage the corporal liberty of the hostages; and they can no more be rendered responsible, at the peril of their lives, for the infidelity of the sovereign, than an innocent person can be treated as a criminal. Thus the state by no means engages the lives of hostages. He, to whom they are given, is supposed to receive them on these conditions; and though by the violation of the treaty they are at his mercy, it does not follow that he has a right to put them to death; he can only retain them as prisoners of war.10
XIII. Hostages, given for a certain purpose, are free so soon as that purpose is answered, and consequently cannot be detained upon any other account, for which no hostages were promised. But if we have broke our faith in any other case, or contracted a new debt, the hostages then may be detained, not as hostages, but in consequence of this rule of the law of nations, which authorises us to detain the persons of subjects for the deeds of their sovereigns.11
XIV. The query is, whether a hostage is at li-<359>berty by the death of the sovereign, who made the covenant? This depends on the nature of the treaty, for the security of which the hostage was given; that is to say, we must examine whether it be personal, or real.
But if the hostage becomes successor to the prince who gave him up, he is no longer obliged to be detained as an hostage, though the treaty be real; he ought only to put another in his place, whenever it is demanded. This case is supposed to be tacitly excepted; for it cannot be presumed that a prince, for example, who has given his own son and presumptive heir as an hostage, ever intended, that in case he should die, the state should be without its chief.12
XV. Sometimes pledges are also given for the security of a treaty of peace; and as we have said that hostages may be detained for other debts, this may also be applied to pledges.13
XVI. Another way, in fine, of securing peace, is, when princes or states, especially those who have been mediators of the peace, become guarantees, and engage their faith, that the articles shall be observed on both sides; which engagement of theirs implies an obligation of interposing their good offices, to obtain a reasonable satisfaction to the party injured contrary to treaty, and even of assisting him against the injurious aggressor.14 <360>
Of the right of ambassadors.
I. It remains now for us to say something of ambassadors, and of the privileges which the law of nations grants them. The subject naturally leads us to it, since it is by means of these ministers that treaties are generally negotiated and concluded.
II. Nothing is more common than the maxim, which establishes that the persons of ambassadors are sacred and inviolable, and that they are under the protection of the law of nations. We cannot doubt but that it is of the utmost importance to mankind in general, and to nations in particular, not only to put an end to wars and disputes, but also to establish and maintain commerce and friendship with each other. Now as ambassadors are necessary to procure these advantages, it follows that God, who certainly commands every thing that contributes to the preservation and happiness of society, cannot but forbid the doing any injury to those persons; but, on the contrary, he orders we should grant them all the security and privileges, which the design and nature of their employment require.1
III. Before we enter into the application of the privileges which the law of nations grants to ambassadors, we must observe with Grotius, that they<361> belong only to ambassadors sent by sovereign powers to each other. For as to deputies sent by cities or provinces to their own sovereigns, it is not by the law of nations that we must judge of their privileges, but by the civil law of the country. In a word, the privileges of ambassadors regard only foreigners; that is to say, such as have no dependance on us.
Nothing then hinders an inferior ally from having a right to send ambassadors to a superior ally; for in the case of an unequal alliance, the inferior does not cease to be independent.
It is a question, whether a king, vanquished in war and stript of his kingdom, has a right of sending ambassadors? But indeed this question is useless, with respect to the conqueror, who will not even so much as think whether he ought to receive ambassadors from a person whom he has deprived of his kingdom. With regard to other powers, if the conqueror has entered into the war for reasons manifestly unjust, they ought still to acknowledge that person for the true king, who really is so, so long as they can do it without some great inconveniency; consequently they cannot refuse to receive his ambassadors.
But in civil wars the case is extraordinary; for then necessity sometimes makes way for this right, so as to receive ambassadors on both sides. The same nation, in that case, is for a time accounted two distinct bodies of people. But pirates and robbers, that do not constitute a settled government, can have no right of nations belonging to them, nor consequently that of sending ambassadors,2 un-<362>less they have obtained it by a treaty, which has sometimes happened.
IV. The ancients did not distinguish different sorts of persons sent by one power to another; the Romans called them all legati, or oratores. At present there are various titles given to these public ministers. But the employment is in the main the same; and the several distinctions are founded rather on the greater or lesser splendor with which they support their dignity, and on the greatness or smallness of their salary, than on any other reason derived from their character.3
V. The most common distinction of ambassadors, at present, is into extraordinary and ordinary. This difference was entirely unknown to the ancients. With them all ambassadors were extraordinary, that is to say, charged with only a particular negotiation; whereas the ordinary ambassadors are those who reside among foreign nations, to transact all kinds of political concerns, and even to observe what passes in the respective courts.
The situation of things in Europe, since the destruction of the Roman empire, the different sovereignties and republics that have been erected, together with the increase of trade, have rendered these ordinary ambassadors necessary. Hence several historians justly observe, that the Turks, who keep no ministers in foreign countries, act very impoliticly; for as they receive their news only by Jewish or Armenian merchants, they do not generally hear of things till very late, or their informa-<363>tions are bad, which often makes them take imprudent measures.4
VI. Grotius observes, that there are two principal maxims of the law of nations, concerning ambassadors. The first, that we ought to admit them; the second, that their persons are sacred and inviolable.5
VII. With regard to the first of these maxims, we must observe, that the obligation of admitting ambassadors, is founded in general on the principles of humanity: for as all nations form a kind of society among themselves, and consequently ought to assist each other by a mutual intercourse of good offices, the use of ambassadors becomes necessary between them for that very reason. It is therefore a rule of the law of nations, that we ought to admit ambassadors, and to reject none without a just cause.
VIII. But though we are obliged to admit ambassadors, it is only a bare duty of humanity, which produces but an imperfect obligation. So that a simple refusal cannot be regarded as an injurious act, sufficient to lay a just foundation for a war. Besides, the obligation to admit ambassadors regards as well those sent to us by an enemy, as those who come from an allied power. It is the duty of princes, who are at war, to seek the means of re-establishing a just and reasonable peace; and they cannot obtain it, unless they are disposed<364> to listen to the proposals that may be made on each side; which cannot be so well negotiated, as by employing ambassadors or ministers. The same duty of humanity also obliges neutral, or indifferent princes, to afford a passage through their territories to ambassadors sent by other powers.
IX. I mentioned that we ought not, without a just cause, refuse admittance to an ambassador; for it is possible that we may have very good reasons to reject him: for example, if his master has already imposed upon us under pretext of an embassy, and we have just reason to suspect the like fraud; if the prince, by whom the ambassador is sent, has been guilty of treachery, or of some other heinous crime against us; or, in fine, if we are sure that, under the pretext of negotiating, the ambassador is sent only as a spy, to pry into our affairs, and to sow the seeds of sedition.
Thus, in the retreat of the ten thousand, the history of which has been written by Xenophon, the generals resolved, that so long as they were in the enemy’s country they would receive no heralds; and what moved them to this resolution, was their having found that the persons who had been sent among them, under the pretence of embassy, came really to spy into their affairs, and to corrupt the soldiers.
It may also be a just reason for refusing admittance to an ambassador, or envoy from an allied power, when by admitting him we are likely to give distrust to some other power, with whom it is proper we<365> should maintain a good understanding. Lastly, the person or character of the ambassador himself may furnish just reasons for our not admitting him. This is sufficient concerning the maxim relating to the admittance of ambassadors.
X. With regard to the other rule of the law of nations, which directs that the persons of ambassadors be looked upon as sacred and inviolable, it is a little more difficult to decide the several questions relating to it.
1°. When we say that the law of nations forbids any violence to ambassadors, either by word or action, we do not by this give any particular privilege to those ministers; for this is no more than what every man has a right to by the law of nature, a right that his life, his honour, and his property, be perfectly secure.6
2°. But when we add, that the persons of ambassadors are sacred and inviolable by the law of nations, we attribute some prerogatives and privileges to them, which are not due to private persons, &c.
3°. When we say that the person of an ambassador is sacred, this signifies no more than that we inflict a severer punishment on those who offer violence to an ambassador, than on such as commit an injury or insult to private persons; and the character of ambassadors, is the reason of our inflicting so different a punishment for the same kind of offence.
4°. Lastly, the reason why we call the persons of ambassadors sacred, is because they are not subject to the jurisdiction of the sovereign to whom<366> they are deputed, either in their persons, their retinue, or effects; so that we cannot proceed against them, according to the ordinary course of justice; and it is in this that their privileges chiefly consist.
XI. The foundation of these privileges, which the law of nations grants to ambassadors, is, that as an ambassador represents the person of his master, he ought of course to enjoy all the privileges and rights which his master himself, as a sovereign, would have, were he to come into the states of another prince, in order to transact his own affairs, to negotiate, for instance, or conclude a treaty, or an alliance, to regulate some branch of commerce, and other things of a similar nature, &c. Now when a sovereign goes into a foreign country, we cannot imagine that he loses his character and independance, and that he becomes subject to the prince whose territories he visits: on the contrary, he ought to continue as he was before, equal and independent of the jurisdiction of the prince, whose territories he enters; and the latter receives him on the same footing as he would choose to be received himself, if he went into the other’s dominions.7 Now we must grant the ambassador the same prerogative and immunities, in consequence of his representative character.
The very end and design of embassies render these privileges of ambassadors necessary; for it is certain, that if an ambassador can treat with the prince to whom he is sent, with a full independance, he will be much better qualified to perform his duty, and serve his master effectually, than if he were sub-<367>ject to a foreign jurisdiction, or if he and his retinue could be consigned over to justice, and his goods arrested and seized, &c. Hence it is, that all nations have, in favour of ambassadors, made a very just exception to the general custom, which requires, that people who reside in a foreign prince’s dominions, shall be subject to that prince’s laws.
XII. These principles being supposed, I affirm,
1°. That there is no difficulty with respect to ambassadors, who are deputed to a power with whom their master is at peace, and have injured no man. The most evident maxims of the law of nature require they should be perfectly secure. So that if we affront or insult such a minister, in any manner whatsoever, we give his master just reason for declaring war. Of this king David furnishes us with an example.*
2°. With regard to ambassadors who come from an enemy, and have done no harm before they are admitted, their safety depends entirely on the laws of humanity; for an enemy, as such, has a right to annoy his enemy. Thus, so long as there is no particular agreement upon this article, we are obliged to spare the ambassador of an enemy, only in virtue of the laws of humanity, which we ought always to respect, and which oblige us to have a regard for every thing tending to the preservation of order and tranquillity.
3°. But when we have promised to admit, or have actually admitted the ambassador of an ene-<368>my, we have thereby manifestly engaged to procure him entire security, so long as he behaves well. We must not even except heralds, who are sent to declare war, provided they do it in an inoffensive manner.
4°. With regard to ambassadors, who have rendered themselves culpable, either they have done the injury of their own head, or by their master’s order.
If they have done it of their own head, they forfeit their right to security, and to the enjoyment of their privileges, when their crime is manifest and heinous: for no ambassador whatever can pretend to more privilege than his master would have in the same case; now such a crime would not be pardoned in the master.
By heinous crimes, we here mean such as tend to disturb the state, or to destroy the subjects of the prince to whom the ambassador is deputed, or to do them some considerable prejudice.
When the crime directly affects the state, whether the ambassador has actually used violence or not, that is to say, whether he has stirred up the subjects to sedition, or conspired himself against the government, or favoured the plot; or whether he has taken arms with the rebels or the enemy, or engaged his attendants so to do, &c. we may be revenged on him, even by killing him, not as a subject, but as an enemy; for his master himself would have no reason to expect better treatment. And the end of embassies, instituted no doubt for the general good of nations, does not require that we should grant to an ambassador, who first vio-<369>lates the law of nations, the privileges which that law allows to foreign ministers. If such an ambassador makes his escape, his master is obliged to deliver him up, when demanded.
But if the crime, however heinous or manifest, affects only a private person, the ambassador is not for that alone to be reputed an enemy to the prince or state. Suppose his master had committed a crime of the same nature, we ought to demand satisfaction of him, and not take up arms against him till he had refused it; so the same reason of equity directs, that the prince, at whose court the ambassador has committed such a crime, should send him back to his master, desiring him either to deliver him up, or to punish him: for to keep him in prison till his master shall recall him, in order to punish him, or declare that he has abandoned him, would be to testify some distrust of the justice of his master, and by that means affront him in some measure, because he is still represented by the ambassador.
5°. But if the crime be committed by the master’s order, it would certainly be imprudence to send the ambassador back; since there is just reason to believe, that the prince who ordered the commission of the crime, will hardly surrender, or punish the criminal. We may, therefore, in this case, secure the person of the ambassador, till the master shall repair the injury done both by his ambassador and himself. In regard to those who do not represent the person of the prince, such as common messengers, trumpets, &c. we may kill them on the spot, if they come to insult a prince by order of their master.<370>
But nothing is more absurd than what some maintain, namely, that all the evil done by ambassadors, by order of their master, ought to be imputed intirely to the latter. Were it so, ambassadors would have more privilege in the territories of another prince, than their master himself, should he appear there: and, on the other hand, the sovereign of the country would have less power in his own dominions, than a master of a family has in his own house.8
In a word, the security of ambassadors ought to be understood in such a manner, as to imply nothing contrary to the security of the powers to whom they are sent, and who neither would, nor could receive them upon other terms. Now it is plain, that ambassadors will be less bold in undertaking any thing against the sovereign, or against the members of a foreign state, if they are apprehensive, that in case of treason, or some other heinous crimes, the government of that country can call them to an account for it, than if they had nothing to apprehend but correction from their master.
6°. When the ambassador himself has committed no crime, it is not lawful to use him ill, or to kill him by the law of retaliation, or reprisals; for by admitting him under that character, we have renounced our right to any such revenge.
In vain would it be to object a great many instances of this kind of revenge, which are mentioned in history; for historians not only relate just and lawful actions, but also divers things done contrary to justice in the heat of anger, by the influence of some irregular and tumultuous passion.<371>
7°. What has been hitherto said of the rights of ambassadors, ought to be applied to their domestics, and all their retinue. If any of the ambassador’s domestics has done an injury, we may desire his master to deliver him up. If he does not comply, he makes himself accessary to his crime, and in this case we have a right to proceed against him in the same manner, as if he had committed the fact himself.
An ambassador, however, cannot punish his own domestics; for as this is not conducive to the end of his employment, there is no reason to presume that his master has given it him.
8°. With respect to the effects of a foreign minister, we can neither seize them for payment, nor for security, in the way of justice; for this would suppose, that he was subject to the jurisdiction of the sovereign at whose court he resides. But if he refuses to pay his debts, we ought, after giving him notice, to apply to his master, and if the latter refuses to do us justice, we may seize the effects of the ambassador.
9°. Lastly, as to the right of asylums and protections, it is by no means a consequence of the nature and end of embassies. However, if it is once granted to the ambassadors of a certain power, nothing but the welfare of the state, authorises us to revoke it.
Neither ought we, without good reasons, to refuse ambassadors the other sorts of rights and privileges, which are established by the common consent of sovereigns; for this would be a kind of an affront to them.
The End of the Fourth and Last Part.
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[1. ]Burlamaqui thus sides with Pufendorf and Barbeyrac against Grotius, arguing that there is no obligatory law of nations distinct from the laws of nature. See DGP I.1 §14 note 3.
[2. ]This paragraph, like paragraph 10 below, seems to be based on DNG VIII.6 §2.
[* ]See lower down, chap. iii.
[3. ]The translator omits “be able to.”
[4. ]This striking formulation is not to be found among usual ones listed by Barbeyrac in DNG VIII.6 §2 note 4, except perhaps if it is meant as a rephrasing of Aristotle’s dictum “we make war that we may live in peace.”
[5. ]This paragraph and the following are from DNG VIII.2 §1.
[6. ]This paragraph is based on DNG VIII.2 §4.
[7. ]Pufendorf makes a similar point in DNG III.3 §10.
[8. ]Based on DNG VIII.5 §3 note 1. The expression “pépinières de l’état” or “the seedbeds of the state” (here confusingly translated as the “pledges” of the state) is from DNG VI.1 §1.
[9. ]Compared with Barbeyrac or Grotius, Burlamaqui seems reluctant to take a stand on the issue of religious toleration, the present passages constituting one of the chief exceptions to this rule. The remark that religious toleration has advantages in terms of population growth was popular among the defenders of freedom of conscience in the Netherlands; see, for example, Barbeyrac, Traité de la morale des pères de l’église (Amsterdam, 1728), §31.
[1. ]This paragraph and the next draw on DGP II.1 §1 and DGP II.22 §2.
[2. ]The summary of Grotius’s position presented in this and the four following paragraphs is taken from DNG VIII.6 §4 note 1.
[* ]See the explication of these principles in Budeus’s Jurisprud. hist. specim. § 28, &c.
[3. ]Based on DGP II.22 §5.
[4. ]Based on DGP II.22 §6 note 1.
[5. ]This paragraph draws on DGP II.22 §§8–10.
[6. ]This is drawn from DGP II.22 §12, where Grotius also denies that there are men who are slaves by nature.
[7. ]See DNG VIII.6 §3 note 2.
[8. ]Grotius discussed granting passage in DGP II.2 §13, which Burlamaqui makes use of here. Burlamaqui uses Pufendorf ’s criticism of Grotius in DNG III.3 §5 and especially Barbeyrac’s equally critical remarks in DGP II.2 §13 note 1 to work out his own account as it is laid out in this and the four following paragraphs.
[9. ]This paragraph and the two following are drawn from DNG III.3 §5 note 7.
[* ]See Just. lib. iv. cap. 4. & 8. and Liv. lib. vii. cap. 38.
[10. ]Based on DNG III.3 §5.
[11. ]This and the following paragraphs are based on DNG III.3 §6.
[12. ]The translator adds “though there be great plenty of women among them.” This paragraph is from DNG III.3 §§13–14, while the preceding paragraph provided an abbreviated overview of DNG III.3 §7.
[13. ]This paragraph elaborates on DNG VIII.6 §3 note 1.
[14. ]This paragraph draws on DNG VII.8 §5 note 7, while the following summarizes Grotius’s statements on wars of religion; Burlamaqui could be using Barbeyrac’s summary in DNG VIII.6 §3 note 1. See also DNG VII.4 §11 note 2.
[15. ]Grotius makes a similar statement in DGP II.20 §48, a statement that Barbeyrac summarizes in DNG VIII.6 §3 note 1, which seems to be Burlamaqui’s main source here. Barbeyrac makes similar claims in Traité de la morale des pères §29, where he also adds the reference to the Pauline letters to the Romans that Burlamaqui uses here. The next paragraph repeats Barbeyrac’s standpoint in DNG VIII.6 §3 note 1.
[* ]2 Cor. chap. vi. v. 4, &c. and chap. x. v. 4.
[16. ]This forms a summary of DGP II.24.
[17. ]Taken from DNG VIII.6 §14, a paragraph that summarizes DGP II.25, especially §4.
[18. ]Based on DNG VIII.6 §14, except for the example which is from the passages in Grotius that the DNG paragraph summarizes, DGP II.25 §§1–2. The next two paragraphs are from the same paragraph in the DNG, or of DGP II.25 §4.
[19. ]This paragraph is from DNG VIII.9 §5 note 1.
[20. ]This and the two following paragraphs are again from DNG VIII.6 §14, except that Burlamaqui is less critical of a right of interference than Pufendorf.
[21. ]This paragraph is taken either from DNG VIII.6 §14 or from DGP II.25 §8, but the next paragraph is clearly from the latter.
[22. ]Read: “… for the single reason that they are men and members of the human society that civil societies participate in.” This paragraph is from DGP II.25 §8 note 1. The next paragraph is again from the main text of that paragraph.
[1. ]This paragraph is based on DNG VIII.6 §3, while the next four are drawn from note 1 to the same.
[2. ]The translator’s “has had sufficient provocation” is not a good translation for the original “a raison.” The French “avoir raison” can mean either “have reason” or “have just cause.”
[3. ]In DGP I.3 §1.
[4. ]Based on DNG VIII.6 §9; the following paragraph is from §10 of the same chapter and on DGP I.3 §4.
[* ]See above, sect. vii. [i.e., §7 in this chapter.]
[5. ]This and the next paragraphs are taken from DGP I.3 §4 note 6. In paragraph 12 below, Burlamaqui expands on the issue before returning in paragraph 13 to his repetition of Barbeyrac’s footnote.
[6. ]This and the three following paragraphs are from DNG VIII.6 §10.
[* ]Livy, lib. xxi. cap. xviii.
[7. ]This paragraph is from DNG VIII.6 §11. The following is again from §10 of the same chapter.
[8. ]Read: “accused” rather than “responsible.” This paragraph and the three following are from DNG VIII.6 §12.
[9. ]Read: “which properly interest the body of which they are members.” Pufendorf ’s position is also rejected by Barbeyrac, who refers to the relevant passages in Grotius in DNG VIII.6 §12 note 2. These passages are in DGP II.20 §§3–6 and are summarized by Barbeyrac in DNG VIII.3 §4 note 3, which also contains a presentation of Locke’s similarly non-Pufendorfian approach. The main source for this and the next two paragraphs seems to be DGP II.21 §3.
[10. ]Read: “or.” At the end of this paragraph, read “all other powers” (“toute autre puissance”).
[11. ]Read: “necessary that.” This paragraph is from DGP II.21 §4.
[12. ]Based on DNG VIII.6 §13 and on note 1 to the same.
[13. ]This and the five following paragraphs are based on DGP III.2 §2 note 1.
[14. ]This and the five following paragraphs are (again very nearly word for word) from DNG VIII.6 §13 note 1.
[15. ]Compare this with DNG VII.8 §6 note 1.
[1. ]This paragraph is from DGP II.23 §7.
[2. ]This paragraph is from DGP II.23 §8 and from note 1 to the same.
[3. ]For “we have a full property” read: “we have a full right” (“sur laquelle on a un plein droit”).
[4. ]This paragraph uses DGP II.23 §9. In note 1 to that paragraph, Barbeyrac refers the reader to DGP III.20 §42, which Burlamaqui has also used here and in the next paragraph. Burlamaqui adds to Grotius’s account when he states that the sovereign has a duty to defend not only the honor and so on of the subjects but also their religion.
[5. ]This paragraph is from DGP II.23 §10.
[6. ]For “whether it be lawful” read: “whether one does well to.” This and the following paragraph are from VIII.8 §5.
[7. ]This paragraph is from DGP III.20. §43 and note 5 to the same. The next paragraph is from note 7.
[8. ]This paragraph is from DGP III.20 §43.
[9. ]This paragraph and the next two are from DNG VIII.6 §9 note 1.
[10. ]The translator omits “and this is true even when there is but little hope that he would give us satisfaction.”
[* ]See above, numb. xviii.
[11. ]This paragraph is from DGP III.3 §7 and note 1 to the same.
[12. ]This paragraph is from DGP III.3 §9.
[13. ]For “is called just” read: “as can be called legitimate and solemn.” This paragraph is from DGP III.3 §11.
[14. ]This paragraph and the next are from DGP III.3 §11 note 2.
[1. ]This paragraph and the three following are from DNG 1732 VIII.6 §7 note 1.
[2. ]Read: “attack with cannons.” This paragraph is from DGP III.1 §4.
[3. ]This paragraph and the next are based on DNG VIII.6 §7.
[4. ]This paragraph is based on DGP III.1 §6.
[5. ]This paragraph is from DGP III.1 §20.
[6. ]This paragraph and the two following are from DNG VIII.6 §15.
[7. ]This paragraph and the three following are from DGP III.4 §4 and especially note 1 to the same.
[1. ]This paragraph and the next are based on DNG 1732 VIII.6 §7 note 1 and on DGP III.4 §5.
[2. ]This paragraph is based on DGP III.4 §6. The next is from §7 to the same chapter.
[3. ]This paragraph is based on DGP III.4 §9 and DGP III.11 §9; compare with DNG 1732 VIII.6 §7 note 1.
[4. ]This paragraph is from DGP III §13.
[* ]Grotius, lib. iii. cap. iv. § 19. [This paragraph is from DNG VIII.6 §7 note 1, where Barbeyrac presents Grotius’s position in abbreviated form. The next paragraph is from the same note or from DGP III.4 §15.]
[5. ]This paragraph and the next are from DGP III.4 §15 note 1.
[6. ]This paragraph is from DGP III.4 §18.
[7. ]This paragraph is partly drawn from DGP III.4 §18 note 11. The following seven paragraphs are from the same source.
[8. ]This paragraph is from DGP III.4 §18.
[* ]Livy, lib. xxviii. cap. xvii. numb. 12, & seq.
[9. ]This paragraph is from DGP III.4 §8.
[10. ]This paragraph is from DGP III.7 §1.
[11. ]This paragraph is based on DGP III.7 §2. The following three paragraphs are based on DGP III.7 §3, §5, and §9, respectively.
[* ]Cic. de Off. lib. iii. cap. vi.
[1. ]For the first two paragraphs, see DNG 1732 VIII.6 §7 note 1 and DGP III.5 §§1–2.
[2. ]For this paragraph and the three following, see DNG 1732 VIII.6 §7 note 1 and DGP III.5 §2.
[3. ]The French expression is “faire du dégat,” and it is not meant to include stealing but only destroying. This paragraph is taken from DNG 1732 VIII.6 §7 note 1. Grotius discusses the matter similarly in DGP III.12 §§1, 6.
[4. ]The second half of this paragraph is taken from DGP III.5 §2 note 34.
[5. ]This paragraph is from DGP III.12 §8.
[6. ]This paragraph and the next two are from DGP III.6 §2 and note 1 to the same.
[7. ]The question is discussed in DGP III.6 §3; in the next three paragraphs Burlamaqui also uses Barbeyrac’s criticism in DGP III.6 §3 note 1.
[8. ]Add “among European countries.”
[9. ]See DGP III.6 §4.
[10. ]See DGP III.6 §5 and note 1 to the same.
[11. ]For this and the next paragraph, see DGP III.6 §6.
[12. ]This paragraph is from DGP III.6 §7.
[13. ]See DGP III.6 §8 and DNG VIII.6 §18.
[14. ]This paragraph and the next two are based on DNG VIII.6 §18; see also DGP III.6 §10 note 1 and DGP III.6 §8 note 4. Note that Burlamaqui’s footnote claims the regulations are “not of public right”—Barbeyrac’s otherwise identical footnote stated the opposite.
[15. ]This and the two following footnotes are from DNG VIII.6 §§19–20; see also DGP III.8 §4.
[16. ]In DGP III.6 §27.
[17. ]This paragraph and the six following are from DGP III.6 §27 note 2.
[* ]Lib. xxi. sect. 1. ff. de capt. & revers.
[18. ]From DGP III.4 §4 note 1; see also DGP II.17 §19.
[1. ]This paragraph is based on DGP III.8 §1 note 1.
[2. ]See DNG VII.7 §3. See also note 4 to the same.
[3. ]Based on DNG VII.7 §4.
[4. ]Based on DGP III.19 §11 note 1. See also DNG VII.7 §3 note 4.
[5. ]Based on DGP II.4 §8.
[6. ]This and the four following paragraphs are from DGP III.8 §1 note 1.
[7. ]See DGP III.15 §3. For the following two paragraphs, see §4 and §5 to the same chapter respectively.
[8. ]These arguments are from DGP III.15 §11 and note 3. Burlamaqui’s statement is bolder than Grotius’s: the latter merely claims noninterference in religious affairs is “by no means prejudicial to the conqueror.” Burlamaqui could be following Barbeyrac, who repeatedly insists that religious toleration is a duty incumbent on every state; see, for example, DNG VII.4 §11 note 2.
[9. ]The whole discussion of neutrality is from Barbeyrac in DNG 1732 VIII.6 §7 note 2.
[1. ]Based on DGP II.15 §1.
[2. ]For “public felicity” read: “an infinity of particulars.”
[* ]Punica fides.
[3. ]For this and the next paragraph, see DGP II.15 §5; see also note 12 to the same.
[4. ]See DGP II.15 §6.
[5. ]For “is,” read: “recognizes itself as.”
[6. ]This paragraph is based on DGP II.15 §6, while the two following are based on §7 of the same paragraph.
[7. ]This and the following paragraphs are mainly from DNG VIII.9 §6 and note 4 to the same, and from §8 to the same chapter. See also DHC II.17 §7 and DGP II.16 §16, especially note 6.
[* ]Leg. vii. § viii. ff. de Pactis. [“But whether a pact has been concluded in rem or in personam is to be gathered not less from the words than from the intention of the parties.” Alan Watson, ed., The Digest of Justinian, rev. English language ed. (Philadelphia: University of Pennsylvania Press, 1998), 18.104.22.168.]
[* ]See Grotius on war and peace, book ii. chap. xv. § 8, 9, 10, 11, 12.
[8. ]These rules are drawn from DGP II.15 §§14–15 and from DNG VIII.9 §11.
[9. ]See DGP II.15 §3 and note 1.
[10. ]See DGP II.15 §16 and DNG VIII.9 §12.
[1. ]See DNG VIII.7 §1.
[* ]Est etiam jus bellicum; fidesque jurisjurandi saepe cum hoste servanda. Off. lib. iv. cap. 29.
[2. ]This is in DNG VIII.7 §2. The criticism in the next paragraph is from note 1 to the same.
[3. ]Burlamaqui here sides with Grotius against Pufendorf, who presented a critical response to Grotius’s view, which upheld the legitimacy of peace agreements made under threat of unjust violence. See DNG VIII.8 §1.
[4. ]Based on DGP III.19 §11 note 1.
[* ]Livy, lib viii. cap. xx, xxi.
[* ]See above.
[1. ]See DNG VIII.7 §3.
[2. ]See DNG VIII.7 §9 and DGP III.21 §10 and note 1 to the same.
[3. ]See DNG VIII.7 §7.
[4. ]This paragraph and the next are mainly based on DNG VIII.7 §§9–10 and on note 1 to §10.
[* ]See the Law of nature and nations, book viii. chap. vii. § 9.
[5. ]The critique is from Barbeyrac in DGP III.21 §10 notes 1 and 2.
[6. ]See DNG VIII.7 §8 note 1 and DGP III.21 §5.
[7. ]See DNG VIII.7 §11 and DPG III.21 §§11–13.
[8. ]This paragraph is based on DGP III.21 §14.
[9. ]The first two rules are from DGP III.21 §§15 and 16, respectively. The fourth is from §17 to the same paragraph. The sixth is from note 1 to §20, the seventh from note 1 to §21.
[10. ]This paragraph is based on DGP III.21 §§23–24.
[11. ]This and the three following paragraphs are based on DGP III.21 §§27, 28, 29, and 30, respectively.
[1. ]This paragraph is loosely based on DNG VIII.9 §§12–13 and DGP III.22 §§2–4.
[2. ]See DGP III.22 §7. The last remark on short truces is in line with Pufendorf, DNG VIII.7 §13, against Grotius, DGP III.22 §8. Barbeyrac presents the Pufendorfian standpoint and elaborates on it in note 1 to the latter paragraph.
[3. ]Based on DGP III.22 §8 note 2.
[4. ]For this and the next paragraph, see DGP III.22 §9.
[* ]De Offic. lib. i. cap. xiii. [This first paragraph is from DGP III.23 §1.]
[1. ]This paragraph and the next are based on DGP III.23 §5 and note 1 to the same.
[* ]Cicer. de Offic. lib. iii. cap. xxix. [This paragraph is based on DGP III.23 §6; the two following are from §7 and §8, respectively.]
[2. ]This paragraph is from DGP III.23 §10 note 1.
[1. ]This paragraph is based on DGP III.20 §1.
[2. ]Pufendorf criticizes Grotius’s view in DNG VIII.8 §1, but Burlamaqui sides with Grotius in DGP III.19 §11, as does Barbeyrac in note 1 to that paragraph. See also DGP III.19 §12.
[3. ]This issue is discussed by Pufendorf in DNG VIII.8 §2, to which Burlamaqui adds Barbeyrac’s words from DGP III.19 §6 note 3.
[4. ]This paragraph is from DGP III.20 §§2–3.
[5. ]This paragraph is from DGP III.20 §5 and from DNG VIII.8 §3.
[6. ]The first rule is loosely based on DGP III.20 §15 note 1. The second and third rules are from §§16 and 17, respectively, while the fourth is from §20 in the same chapter. Rule 5 is from DNG VIII.8 §4, rule 6 from DNG VIII.7 §4.
[7. ]For this paragraph, see DGP III.20 §27. Rule 2 is from §27 note 1. Rules 3 to 5 are from §§28 through 30. Rule 6 is from §32; rule 7 from §§34 and 35. Rules 8 and 9 are from §§37 and 38.
[8. ]This paragraph and the next are from DGP III.20 §52.
[9. ]This paragraph is based on DGP III.20 §54 note 1 and on DGP III.20 §51 note 2.
[10. ]For this paragraph, see DGP III.11 §18.
[11. ]This paragraph is based on DGP III.20 §55.
[12. ]This paragraph is based on DGP III.20 §55 and on DNG VIII.9 §6.
[13. ]This paragraph is based on DGP III.20 §59.
[14. ]This paragraph is based on DNG VIII.8 §7.
[1. ]This paragraph is based on DNG VIII.9 §12 note 1.
[2. ]Read: “cannot enjoy with respect to ambassadors the privileges of the law of nations.” This paragraph is based on DGP II.18 §2 and on note 7 to the same.
[3. ]This passage would seem to be drawn from Kornelius van Bynkershoek’s Traité du juge competent des ambassadeurs, chapter 1 §1 (Barbeyrac’s French translation of De foro legatorum ).
[4. ]Part of this paragraph seems to be from Bynkershoek 1 §§3–4.
[5. ]For this and the three following paragraphs, see DGP II.18 §§3–4 with notes.
[6. ]See DGP II.18 §4 and note 2. See also Bynkershoek 5 §§3–4.
[7. ]See DGP II.18 §4 and Bynkershoek 3 §§3–4.
[* ]2 Sam. chap. x.
[8. ]The first five rules and half of the description of rule 5, that is, the portion of this paragraph that precedes this footnote, is from DGP II.18 §4 note 2. The passages immediately below are from DGP II.18 §4 note 5 in fine. The rest is based loosely on DGP II.18 §§6, 8, and 9.