The Online Library of Liberty

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• Introduction
• Acknowledgments
• Abbreviations
• General Note
• Advertisement By the Translator.
• Juventuti Academicae Salutem.
• To the Students In Universities.
• Philosophiae Moralis Institutio Compendiaria With a Short Introduction to Moral Philosophy
• Philosophiae Moralis Institutio Compendiaria
• Liber I: Ethices Elementa.
• Caput I: De Hominis Natura Ejusque Partibus.
• Caput II: De Summo Bono Et Virtute.
• Caput III: De Variis Virtutum Divisionibus.
• Caput IV: De Virtutibus Et Officiis Erga Deum.
• Caput V: De Officiis Erga Alios Homines Exercendis.
• Caput VI: De Officiis Cujusque Erga Se, Et De Animi Cultura.
• 1 {caput VII: De Virtutis Studio Excitando Et Retinendo.
• Liber II: Jurisprudentiae Naturalis Elementa.
• Caput I: De Lege Naturali.
• Caput II: De Juris Natura Et Divisionibus.
• Caput III: De Virtutum Et Vitiorum Gradibus, Inter Se Comparatis{; Iisque Quae Speciem Moralem Afficiunt}.
• Caput IV: De Jure Privato Naturali.
• Caput V: De Jure Adventitio Reali, Et Rerum Dominio.
• Caput VI: De Dominii Acquirendi Rationibus.
• Caput VII: De Jure Derivato, Ejusque Causis.
• Caput VIII: De Dominii Transferendi Rationibus, Per Contractus, Successiones, Aut Testamenta.
• Caput IX: De Contractibus.
• Caput X: De Sermocinantium Officiis.
• Caput XI: De Jurejurando Et Votis.
• Caput XII: De Rerum Pretio.
• Caput XIII: De Variis Contractuum Generibus Post Pretia Rerum Constituta.
• Caput XIV: De Obligationibus Quasi Ex Contractu Ortis.
• Caput XV: Jura Ex Damno Dato, Atque Ex Aliorum Injuriis Orta. Jura Belli.
• Caput XVI: De Jure Extraordinario Ex Necessitate, Omniumque Jure Communi.
• Caput XVII: De Juris Interitu. De Litibus In Libertate Dirimendis, Et Interpretatione.
• Liber III: Oeconomices Et Politices Elementa.
• Caput I: De Conjugio.
• Caput II: De Parentum Et Liberorum Officiis.
• Caput III: De Herorum Et Servorum Jure.
• Caput IV: De Civitatum Origine Et Causis.
• Caput V: De Interna Civitatum Structura, Et Summi Imperii Partibus.
• Caput VI: De Variis Rerumpublicarum Formis.
• Caput VII: De Summi Imperii Jure, Ejusque Acquirendi Rationibus.
• Caput VIII: De Legibus Condendis, Et De Jurisdictione.
• Caput IX: De Jure Belli.
• Caput X: De Foederibus, Legatis, Et Civitatum Interitu [deletione].
• A Short Introduction to Moral Philosophy.
• Book I: The Elements of Ethicks.
• Chapter I: Of Human Nature and Its Parts.
• Chapter II: Concerning the Supreme Good.
• Chapter III: Concerning the Chief Divisions of Virtue.
• Chapter IV: Our Duties Toward God.
• Chapter V: Our Duties Toward Mankind.
• Chapter VI: Concerning Our Duties Toward Ourselves, and the Improvement of the Mind.
• Chapter VII: Some Practical Considerations to Excite and Preserve the Study of Virtue.
• Book II: Elements of the Law of Nature.
• Chapter I: Of the Law of Nature.
• Chapter II: Of the Nature of Rights, and Their Several Divisions.
• Chapter III: Concerning the Various Degrees of Virtue and Vice, and the Circumstances On Which They Depend.
• Chapter IV: Concerning the Natural Rights of Individuals.
• Chapter V: Of Real Adventitious Rights and Property.
• Chapter VI: The Methods of Acquiring Property.
• Chapter VII: Of Derived Property.
• Chapter VIII: The Methods of Transferring Property, Contracts, Succession, Testaments.
• Chapter IX: Of Contracts In General.
• Chapter X: Our Obligations In Speech.
• Chapter XI: Of Oaths and Vows.
• Chapter XII: Concerning the Values Or Prices of Goods.
• Chapter XIII: Of the Several Sorts of Contracts.
• Chapter XIV: * Obligations Resembling Those From Contracts.
• Chapter XV: Of Rights Arising From Damage Done, and the Rights of War.
• Chapter XVI: Extraordinary Rights In Cases of Necessity, and the Common Rights of Mankind.
• Chapter XVII: How Rights and Obligations Cease: How Controversies Are to Be Decided In Natural Liberty: and the Rules of Interpretation.
• Book III: The Principles of Oeconomicks and Politicks.
• Chapter I: Concerning Marriage.
• Chapter II: The Duties of Parents and Children.
• Chapter III: The Rights of Masters and Servants.
• Chapter IV: The Original of Civil Government.
• Chapter V: The Internal Structure of States: and the Several Parts of Supreme Power.
• Chapter VI: Of the Various Plans of Government.
• Chapter VII: The Rights of the Supreme Power: and the Methods of Acquiring It.
• Chapter VIII: Of Civil Laws and Their Execution.
• Chapter IX: The Laws of War.
• Chapter X: Of Treaties and Ambassadors, and the Entire Dissolution of States.
• Bibliography of Modern Literature

CHAPTER IX

The Laws of War.

I. The rights of war and treaties <called external> are of that class which respect foreigners. The principal matters of right in war, as to their causes and bounds, were explained in the former book,{* } when treating of war among persons in natural liberty. The same maxims hold in the publick wars of states, which with respect to each other are in the same state of natural liberty.

As to publick wars of a less solemn kind, {without the order of sovereign states on both sides;} they may be sufficiently understood from what was already said about the right of governors to repress tumults and insurrections, and from the right of resistance that subjects may have in defence of themselves against {perfidious} governors.† “A war undertaken by order of independent states on both sides” is called a solemn <or just> war. Nor need we add to the definition [Nor it is always necessary], that it be previously proclaimed; tho’ it be highly becoming every civilized nation, {when they have recourse to force, to let all around know the grounds of it,} as soon as they can conveniently [when more weighty reasons are not opposing to it]. But ’tis plainly not incumbent on the nation invaded by another, to make a previous declaration before it defends itself. Nor is it always necessary that the aggressor should make such previous declaration; as perhaps his surest method of obtaining his right may be by surprizing the enemy; and a previous declaration might prevent his best opportunity of success.1 What has led ingenious and learned men to make a previous proclamation necessary, was too great a deference to the foecial laws among the Romans.2 But as contending by violence is not agreeable to {the rational and social} nature, ’tis unworthy of a good man, when he is forced to betake himself to it, not to declare openly, as soon as he can with safety, his motives and intentions, that all may see that he could not otherways obtain his right.3

As in civil wars there are often specious reasons on both sides; all neighbouring states should shew the same favour to both the contending parties as to these engaged in solemn wars. Nay in civil wars there are as frequently as in the solemn, just causes on one side, and specious ones on the other. Nor is either of the parties engaged in them to be deemed {like robbers or pirates,} abdicating or forfeiting all the rights of mankind.

II. The laws of war either respect the contending parties or neutral states. “What right reason shews necessary to be observed in war for the general interest of mankind” may be called the law of nations of necessary obligation. But “what a long tract of time has made customary, with a tacit approbation or consent of nations”; which however might be altered by contrary custom, or taken away at once by a timeous premonition of all concerned, we may call the voluntary law of nations.4

The just causes of war were explained in the former book.* But with respect to neighbouring states we may suggest, that as among citizens there are allowed actions at law for prevention of damages not yet done, and agrarian laws restrain such excessive acquisitions of wealth as may prove dangerous to the society, tho’ the acquisitions are not to be made by injurious means; so sometimes among neighbouring states, a dangerous increase of power in any one of them may give a just cause of war, if no gentler securities can be obtained: especially when the people of that state shew a general ambition of military glory and conquest, and quit all peaceful arts: so that their neighbours must be in perpetual dangers, unless they also quit the innocent arts of peace, and are always a training to war. But this is an instance of these extraordinary rights which seldom occur.

In publick wars the term of commencement, and the term of ending, <that is termini a quo, and ad quem> {or the bounds of our demands}, may be fixed the same way as those of private persons in natural liberty{; of which formerly}5 .

The just methods of carrying on war are open violence, or such arts of deceiving as carry along with them no profession or tacit engagement [agreement] of communicating our sentiments to the enemy.* Violence is justifiable only against men in battle, or such as violently obstruct our obtaining our rights; altho’ by the inhuman customs which have prevailed, men may exercise with impunity any sort of cruelties toward their enemies <as an external right>. ’Tis also very ordinary to deceive enemies by any false narrations, or any sort of discourse, except such as imports making some covenant or treaty with them. But as it is by treaties alone that either peace can be restored, or more humane methods of war maintained, and horrid mutual cruelties prevented; it never was, nor ought it to be allowed to deceive enemies by any form of treaties.6

III. There are many other obligations introduced by long custom importing tacit covenants; which however could be taken away by a timeous premonition of all concerned. Such as, that none should use poisons in war, or employ any of the enemies subjects or soldiers to assassinate their prince or their generals.7 That all messengers or envoys, or ambassadors sent on either side should have protection to their persons, is indeed matter of <natural and> necessary obligation; since it is by their means alone that peace can be obtained, without the entire destruction of one side, or any humane methods of war preserved. But ’tis matter only of voluntary right that passports should be mutually allowed, to any subjects of the hostile nation who come unarmed, to travel through their countries, or to reside in their cities.8

IV. Upon what grounds of justice the goods of the subjects of hostile states are seized mutually, comes next to be explained.

1. All states in amity are bound to restrain their subjects from depredations, or any way injuring the subjects of states around them: and when such injuries are done, they are obliged to compel the authors of them to make reparation. We speak now of subjects who are amenable by law, and not of pirates or robbers.

2. When such reparation is demanded and refused, the injured state may justly have recourse to force, seizing the <public or private> goods wrongfully taken, or if they can’t find them, taking to their value from the authors of the injury, or from the state, which by defending the depredators <and offering refuge to them> bring the guilt upon themselves. And this right is still more obvious if the injuries have been done by publick order.

3. If there’s no opportunity of seizing the publick goods of the injurious state, the injured may seize the private goods of any citizens of that state <to compensate the damage that has arisen from the injury>. For as the political constitution and the civil power was erected for the behoof of all the subjects [citizens], they are bound to repair any damages arising from this contrivance which they fell upon for their own utility.{* } And the civil powers by giving their protection, have plainly supported and excited their subjects to such injuries.

4. But then these innocent subjects who suffer thus by these reprisals, on account of their community, may justly claim from their community to have their losses repaired, out of the common stock, or out of the goods of the depredators. It certainly would be the more equitable and clear way, that goods thus seized as reprisals from the innocent subjects were only detained as pledges, till the injured state received reparation another way, and then were restored to the owners. But a contrary custom has prevailed;{† } and the old property is on all sides deemed to be extinguished, as soon as such <moveable> goods taken are brought into any fortresses of the captors, and adjudged, either to them or their community: so that should they even be retaken afterwards, the old proprietors cannot claim them <by right of postliminium.>9 Nor can {they be taken by violence, or} any claim be made upon them by the old proprietors, after they are any way legally acquired by any subjects of a neutral state, and brought within their territories.

V. The principal laws with respect to neutral states are briefly these. 1. A neighbour-state under no engagement to send auxiliaries to either side, ought neither to be involved in the war, nor sustain any damage by it.10

2. If the neutral state by some former treaties be obliged to send auxiliaries to both upon the event of wars; when its two confederates are at war with each other, it ought to send aids to neither; or if it is inclined to engage in war, it should send aids to that state whose cause it judges to be just. For all such offensive and defensive alliances bind only upon supposal that the cause be just: nor can they bind the neutral state to make war upon such as are allied to them by solemn treaties.

3. A neutral state may justly purchase, or take by any other title, any moveable spoils taken on either side after they are adjudged as lawful prize: nor can the former proprietors have any further claim upon them. The neutral states or their citizens are no competent judges of the justice of the war and the captures; and they may frequently be ignorant whether the goods they purchase are prizes taken in war or not.

4. But as to lands, forts, or cities [as to immoveable things] the case is different. The neutral state must know by what title they are held, and that they were taken from a state in amity with them: and by purchasing them they must preclude that state from retaking them again. What annual rents or services may be due {by any district or smaller town}, to any {great} city or fort <or land> {lately taken by the enemy}, may justly be paid by such as are neutral, to the present possessor; and the refusal of such payment might be deemed a declaration against the justice of the capture. If such great cities or forts [things] be again recovered by the old governors, the payments made to the enemy during his possession must be sustained as good; nor can the repayment of the same sums or services be demanded. But if the violent possessor <before the end of war> pretends to sell or alienate or relinquish for ever any such rents or services due by a neutral territory, or to exact payments of old debts, or to abolish them, the deed will not be valid against the old proprietor when he recovers his old possessions again.11

5. Whatever new favour is granted, by a neutral state to one of the parties in war, it must grant the like to the other{, if it would preserve neutrality}; such as the allowing any of its subjects to enlist, or hiring out its troops, or supplying with military stores. Indeed the sending arms or military stores, by way of merchandize, to either of the states in war, is deemed commonly by the other a breach of the neutrality; and they are accordingly seizable: and so are even common provisions into any place besieged.12

6. Neutral states must not be hindered in their commerce with either of the parties, except in arms or military stores{; the nature of which too ’tis not easy to define}. A neutral state may set to freight its merchant-ships to either side for trade. If they are taken, the enemy’s cargo is justly seizable, but not the ship. Neutral states may freight the ships of either side; and if they are taken, the cargo cannot be made a prize, but the ship may. Nor should any neutral state lose any right of pledge or mortgage formerly constituted, in any goods {moveable or immoveable} which happen to be taken in war.

7. Neither of the parties at war ought to use any violence against each other within the territories of a neutral state, by taking men, ships, or other goods of their enemies, {found in neutral ports}. And the territory of each includes not only their harbours, but any narrow bays running far into the land, the shoars, and such contiguous parts of the sea as are within reach of any military engines. For if such violence were allowed, a neutral state might suffer greatly by being made a seat of war; and their commerce with both sides must be entirely obstructed.

8. As to deserters and fugitives; neither of the contending parties can exercise any jurisdiction conjoined with force, over their own citizens within the bounds of a neutral state, except by commission first obtained from the civil powers of the neutral state. No state indeed should protect such as have been guilty of the more atrocious, detestable crimes; such criminals should be seized and delivered up to justice. But as to deserters in war from either side, or persons who have fled on account of religion, or any state-crimes they committed, in conjunction with any state-faction, upon some plausible shews of right; a humane custom has obtained that they should find protection in all other states, while they don’t make any new attempts against the civil powers of their country.

[* ]{Ch. xv.} [2.15.6–8.]

[† ]Book III, vii.2.

[1. ]A new paragraph in the Institutio.

[2. ]The great deference was rather to the authority of Cicero, often quoted by all the natural law jurists. In De officiis, 1.36 Cicero refers to the Roman “ius fetialis” and states that no war can be just unless there is a previous claim for damage and formal declaration, which was made by an appointed college of priests, the fetiales.

[3. ]In System 3.10.1, vol. II, p. 348, Hutcheson refers to the work of the Dutch jurist Cornelius van Bynkershoek (1673–1743), Quaestionum juris privati libri quatuor (Lug-duni Batavorum, 1744), book 1, chapt. 2, where it is argued against Grotius that wars may be lawful without a formal declaration. The whole first book of Bynkershoek’s work considers the matter treated by Hutcheson in this chapter.

[4. ]This distinction between natural and customary or voluntary law of nations is discussed by Carmichael, Notes on Puf., pp. 202–3.

[* ]Ch. xv. [2.15.6.]

[5. ]See Book II. xv. 7–8.

[* ]Book II. x. 2 and 3.

[6. ]Cf. Pufendorf, De officio 2.16.5.

[7. ]See ibidem, 2.16.12.

[8. ]See System 3.10.5, vol. II, pp. 352–56.

[* ]{Book II. xiv. [xv] 2. and Book III. iii. 2, art. 5.}

[† ]{Probably with a view to make the soldiers more active in distressing the enemy: as large shares of the goods taken are usually given to the captors.} [This added footnote is not derived from the parallel section of System 3.10.7, vol. II, pp. 355–56.]

[9. ]See Grotius, De jure belli 3.9.14–15. Postliminium is originally the recovery of rights by a returning Roman citizen who had been a prisoner of war.

[10. ]This section is parallel to System 3.10.8, vol. II, pp. 356–62, but perhaps more orderly. Grotius, devoted only a brief chapter to neutral states (De jure belli 3, 17). The first book of Bynkershoek’s Quaestionum juris privati libri quatuor has many chapters devoted to the matter (1.9–16 and 22).

[11. ]More literally: “But the new possessor (unless the war is ended) has no right to abolish for ever these services or the payments of debts, so that the old proprietor, when he recovers his possession, can not claim what is due to him [by the neutral state].”

[12. ]More literally: “Indeed neutral states can not sell arms or carry provisions into a city or a place besieged, if they do not want to mix in the war.”