Front Page Titles (by Subject) CHAPTER XVIII: Of the Mode of terminating Disputes between Nations. - The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.)
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CHAPTER XVIII: Of the Mode of terminating Disputes between Nations. - Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury (LF ed.) 
The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and Richard Whitmore (Indianapolis: Liberty Fund, 2008).
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Of the Mode of terminating Disputes between Nations.
§323. General direction on this subject.The disputes that arise between nations or their rulers, originate either from contested rights or from injuries received. A nation ought to preserve the rights which belong to her; and the care of her own safety and glory forbids her to submit to injuries. But in fulfilling the duty which she owes to her-self, she must not forget her duties to others. These two views, combined together, will furnish the maxims of the law of nations respecting the mode of terminating disputes between different states.
§324. Every nation is bound to give satisfaction respecting the just complaints of another.What we have said in Chap. I. IV. and V. of this book, dispenses with our proving here, that a nation ought to do justice to all others with respect to their pretensions, and to remove all their just subjects of complaint. She is therefore bound to render to each nation what is her due,—to leave her in the peaceable enjoyment of her rights,—to repair any damage that she herself may have caused, or any injury she may have done,—to give adequate satisfaction for such injuries as cannot be repaired, and reasonable security against any injury which she has given cause to apprehend. These are so many maxims evidently dictated by that justice which nations as well as individuals are, by the law of nature, bound to observe.
§325. How nations may abandon their rights and just complaints.Every one is at liberty to recede from his right, to relinquish a just subject of complaint, and to forget an injury. But the ruler of a nation is not, in this respect, so free as a private individual. The latter may attend solely to the voice of generosity; and, in an affair which concerns none but himself alone, he may indulge in the pleasure which he derives from doing good, and gratify his love of peace and quiet. The representative of a nation, the sovereign, must not consult his own gratification, or suffer himself to be guided by his private inclinations. All his actions must be directed to the greatest advantage of the state, combined with the general interests of mankind, from which it is inseparable. It behoves the prince, on every occasion, wisely to consider, and firmly to execute, whatever is most salutary to the state, most conformable to the duties of the nation towards other states,—and, at the same time, to consult justice, equity, humanity, sound policy, and prudence. The rights of the nation are a property of which the sovereign is only the trustee; and he ought not to dispose of them in any other manner than he has reason to presume the nation herself would dispose of them. And as to injuries, it is often laudable in a citizen generously to pardon them: he lives under the protection of the laws; the magistrates are capable of defending or avenging him against those ungrateful or unprincipled wretches whom his indulgence might encourage to a repetition of the offence. A nation has not the same security: it is seldom safe for her to overlook or forgive an injury, unless she evidently possess sufficient power to crush the rash aggressor who has dared to offend her. In such a case, indeed, it will reflect glory on her, to pardon those who acknowledge their faults,—
Parcere subjectis, et debellare superbos;88
and she may do it with safety. But between powers that are nearly equal, the endurance of an injury without insisting on complete satisfaction for it, is almost always imputed to weakness or cowardice, and seldom fails long to subject the injured party to further wrongs of a more atrocious nature. Why do we often see the very reverse of this conduct pursued by those who fancy themselves possessed of souls so highly exalted above the level of the rest of mankind? Scarcely can they receive concessions sufficiently humble from weaker states who have had the misfortune to offend them: but to those whom they would find it dangerous to punish, they behave with greater moderation.
§326. Means suggested by the law of nature, for terminating their disputes.If neither of the nations who are engaged in a dispute thinks proper to abandon her right or her pretensions, the contending parties are, by the law of nature, which recommends peace, concord, and charity, bound to try the gentlest methods of terminating their differences. These are,1. Amicable accommodation.—first, an amicable accommodation.—Let each party coolly and candidly examine the subject of the dispute, and do justice to the other; or let him whose right is too uncertain, voluntarily renounce it. There are even occasions when it may be proper for him who has the clearer right, to renounce it, for the sake of preserving peace,—occasions, which it is the part of prudence to discover. To renounce a right in this manner, is not abandoning or neglecting it. People are under no obligation to you for what you abandon: but you gain a friend in the party to whom you amicably yield up what was the subject of a dispute.
§327.2. Compromise.Compromise is a second method of bringing disputes to a peaceable termination. It is an agreement, by which, without precisely deciding on the justice of the jarring pretensions, the parties recede on both sides, and determine what share each shall have of the thing in dispute, or agree to give it entirely to one of the claimants on condition of certain indemnifications granted to the other.
§328.3. Mediation.Mediation, in which a common friend interposes his good offices, frequently proves efficacious in engaging the contending parties to meet each other half-way,—to come to a good understanding,—to enter into an agreement or compromise respecting their rights,—and, if the question relates to an injury, to offer and accept a reasonable satisfaction. The office of mediator requires as great a degree of integrity, as of prudence and address. He ought to observe a strict impartiality; he should soften the reproaches of the disputants, calm their resentments, and dispose their minds to a reconciliation. His duty is to favour well-founded claims, and to effect the restoration, to each party, of what belongs to him: but he ought not scrupulously to insist on rigid justice. He is a conciliator, and not a judge: his business is to procure peace; and he ought to induce him who has right on his side to relax something of his pretensions, if necessary, with a view to so great a blessing.
The mediator is not guarantee for the treaty which he has conducted, unless he has expressly undertaken to guarantee it. That is an engagement of too great consequence to be imposed on any one, without his own consent clearly manifested. At present, when the affairs of the sovereigns of Europe are so connected, that each has an eye on what passes between those who are the most distant, mediation is a mode of conciliation much used. Does any dispute arise? The friendly powers, those who are afraid of seeing the flames of war kindled, offer their mediation, and make overtures of peace and accommodation.
§329.4. Arbitration.When sovereigns cannot agree about their pretensions, and are nevertheless desirous of preserving or restoring peace, they sometimes submit the decision of their disputes to arbitrators chosen by common agreement. When once the contending parties have entered into articles of arbitration, they are bound to abide by the sentence of the arbitrators: they have engaged to do this; and the faith of treaties should be religiously observed.
If, however, the arbitrators, by pronouncing a sentence evidently unjust and unreasonable, should forfeit the character with which they were invested, their judgment would deserve no attention: the parties had appealed to it only with a view to the decision of doubtful questions. Suppose a board of arbitrators should, by way of reparation for some offence, condemn a sovereign state to become subject to the state she has offended, will any man of sense assert that she is bound to submit to such decision? If the injustice is of small consequence, it should be borne for the sake of peace; and if it is not absolutely evident, we ought to endure it, as an evil to which we have voluntarily exposed ourselves. For if it were necessary that we should be convinced of the justice of a sentence before we would submit to it, it would be of very little use to appoint arbitrators.
There is no reason to apprehend, that, by allowing the parties a liberty of refusing to submit to a manifestly unjust and unreasonable sentence, we should render arbitration useless: our decision is by no means repugnant to the nature of recognisances or arbitration articles. There can be no difficulty in the affair, except in case of the parties having signed vague and unlimited articles, in which they have not precisely specified the subject of the dispute, or marked the bounds of their opposite pretensions. It may then happen, as in the example just alleged, that the arbitrators will exceed their power, and pronounce on what has not been really submitted to their decision. Being called in to determine what satisfaction a state ought to make for an offence, they may condemn her to become subject to the state she has offended. But she certainly never gave them so extensive a power; and their absurd sentence is not binding. In order to obviate all difficulty, and cut off every pretext of which fraud might make a handle, it is necessary that the arbitration articles should precisely specify the subject in dispute, the respective and opposite pretensions of the parties, the demands of the one, and the objections of the other. These constitute the whole of what is submitted to the decision of the arbitrators; and it is upon these points alone that the parties promise to abide by their judgment. If then their sentence be confined within these precise bounds, the disputants must acquiesce in it. They cannot say that it is manifestly unjust, since it is pronounced on a question which they have themselves rendered doubtful by the discordance of their claims, and which has been referred, as such, to the decision of the arbitrators. Before they can pretend to evade such a sentence, they should prove, by incontestable facts, that it was the offspring of corruption or flagrant partiality.
Arbitration is a very reasonable mode, and one that is perfectly conformable to the law of nature, for the decision of every dispute which does not directly interest the safety of the nation. Though the claim of justice may be mistaken by the arbitrators, it is still more to be feared that it will be overpowered in an appeal to the sword. The Swiss have had the precaution, in all their alliances among themselves, and even in those they have contracted with the neighbouring powers, to agree before-hand on the manner in which their disputes were to be submitted to arbitrators, in case they could not adjust them in an amicable manner. This wise precaution has not a little contributed to maintain the Helvetic republic in that flourishing state which secures her liberty, and renders her respectable throughout Europe.
§330. Conferences and congresses.In order to put in practice any of these methods, it is necessary to speak with each other, and to confer together. Conferences and congresses are therefore a mode of conciliation, which the law of nature recommends to nations, as well calculated to bring their differences to an amicable termination. Congresses are assemblies of plenipotentiaries appointed to find out means of conciliation, and to discuss and adjust the reciprocal pretensions of the contending parties. To afford the prospect of a happy issue of their deliberations, such meetings should be formed and directed by a sincere desire of peace and concord. In the present century, Europe has witnessed two general congresses,—that of Cambray,* and that of Soissons,† —both tedious farces acted on the political theatre, in which the principal performers were less desirous of coming to an accommodation than of appearing to desire it.
§331. Distinction to be made between evident and doubtful cases.In order at present to ascertain in what manner and how far a nation is bound to resort or accede to these various modes of accommodation, and which of them she ought to prefer, it becomes necessary, in the first place, to distinguish between cases that are evident, and those that are doubtful. Does the question relate to a right that is clear, certain, and incontestable? A sovereign, if he possesses sufficient strength, may peremptorily prosecute and defend that right, without exposing it to the doubtful issue of an arbitration. Shall he submit to negotiate and compound for a thing that evidently belongs to him, and which is disputed with-out the least shadow of justice? Much less will he subject it to arbitration. But he ought not to neglect those methods of conciliation, which, without endangering his own right, may induce his opponent to listen to reason,—such as mediation and conferences. Nature gives us no right to have recourse to forcible means, except where gentle and pacific methods prove ineffectual. It is not permitted to be so inflexible in uncertain and doubtful questions. Who will dare to insist that another shall immediately, and without examination, relinquish to him a disputable right? This would be a means of rendering wars perpetual and inevitable. Both the contending parties may be equally convinced of the justice of their claims: why, therefore, should either yield to the other? In such a case, they can only demand an examination of the question, propose a conference or an arbitration, or offer to settle the point by articles of agreement.
§332. Of essential rights, and those of less importance.In the disputes that arise between sovereigns, it is moreover necessary to make a proper distinction between essential rights and rights of inferior importance: for, according to the difference in the two cases, a different line of conduct is to be pursued. A nation is under many obligations of duty towards herself, towards other nations, and towards the great society of mankind. We know that the duties we owe to ourselves are, generally speaking, paramount to those we owe to others: but this is to be understood only of such duties as bear some proportion to each other. We cannot refuse, in some degree, to forget ourselves with respect to interests that are not essential, and to make some sacrifices, in order to assist other persons, and especially for the greater benefit of human society: and let us even remark, that we are invited by our own advantage, by our own safety, to make these generous sacrifices; for the private good of each is intimately connected with the general happiness. What idea should we entertain of a prince or a nation who would refuse to give up the smallest advantage for the sake of procuring to the world the inestimable blessings of peace? Every power therefore owes this respect to the happiness of human society, to shew himself open to every mode of conciliation, in questions relating to interests which are neither essential nor of great importance. If he exposes himself to the loss of something by an accommodation, by a compromise, or by an arbitration, he ought to be sensible what are the dangers, the evils, the calamities of war, and to consider that peace is well worth a small sacrifice.
But if any one would rob a nation of one of her essential rights, or a right without which she could not hope to support her national existence,—if an ambitious neighbour threatens the liberty of a republic,—if he attempts to subjugate and enslave her,—she will take counsel only from her own courage. She will not even attempt the mode of conferences on so odious a pretension: she will, in such a quarrel, exert her utmost efforts, exhaust every resource, and gloriously lavish her blood to the last drop if necessary. To listen to the smallest proposition, is putting every thing to the risk. On such an occasion she may truly say—
Una salus——nullam sperare salutem:89
and if fortune prove unfavourable, a free people will prefer death to servitude. What would have become of Rome, had she listened to timid counsels, when Hannibal was encamped before her walls? The Swiss, ever so ready to embrace pacific measures or submit to legal decisions in disputes respecting less essential points, have uniformly spurned at all idea of compromise with those who harboured designs against their liberty. They even refused on such occasions to submit their disputes to arbitration, or to the judgment of the emperors.*
§333. How we acquire a right of having recourse to force in a doubtful cause,In doubtful causes which do not involve essential points, if one of the parties will not accede either to a conference, an accommodation, a compromise, or an arbitration, the other has only the last resource for the defence of himself and his rights,—an appeal to the sword; and he has justice on his side in taking up arms against so untractable an adversary. For, in a doubtful cause, we can only demand all the reasonable methods of elucidating the question, and of deciding or accommodating the dispute (§331).
§334.and even without attempting other measures.But let us never lose sight of what a nation owes to her own security, nor of that prudence by which she ought constantly to be directed. To authorise her to have recourse to arms, it is not always necessary that every conciliatory measure be first expressly rejected: it is sufficient that she have every reason to believe that the enemy would not enter into those measures with sincerity,—that they could not be brought to terminate in a happy result,—and that the intervening delay would only expose her to a greater danger of being overpowered. This maxim is incontestable; but its application in practice is very delicate. A sovereign who would not be considered as a disturber of the public peace, will not be induced abruptly to attack him who has not refused to accede to pacific measures, unless he be able to justify his conduct in the eyes of all mankind, by proving that he has reason to consider those peaceable appearances as an artifice employed for the purpose of amusing him, and taking him by surprise. To make his bare suspicions serve as sufficient authority for such a step, would be sapping every foundation on which rests the security of nations.
§335. Voluntary law of nations on this subject.The faith of one nation has ever been suspected by another, and sad experience but too plainly proves that this distrust is not ill-founded. Independence and impunity are a touchstone that discovers the alloy of the human heart: the private individual assumes the character of candour and probity; and, in default of the reality, his dependence frequently obliges him to exhibit in his conduct at least the appearance of those virtues. The great man, who is independent, boasts still more of them in his discourse; but as soon as he finds himself possessed of superior strength, he scarcely endeavours to save appearances, unless his heart be moulded of materials which, unfortunately, are very rare indeed: and if powerful interests intervene, he will give himself a latitude in the pursuit of measures that would cover a private person with shame and infamy. When, therefore, a nation pretends that it would be dangerous for her to attempt pacific measures, she can find abundance of pretexts to give a colour of justice to her precipitation in having recourse to arms. And as, in virtue of the natural liberty of nations, each one is free to judge in her own conscience how she ought to act, and has a right to make her own judgment the sole guide of her conduct with respect to her duties in every thing that is not determined by the perfect rights of another (Prelim. §20), it belongs to each nation to judge whether her situation will admit of pacific measures, before she has recourse to arms. Now, as the voluntary law of nations ordains, that, for these reasons, we should esteem lawful whatever a nation thinks proper to do in virtue of her natural liberty (Prelim. §21), by that same voluntary law, nations are bound to consider as lawful the conduct of that power who suddenly takes up arms in a doubtful cause, and attempts to force his enemy to come to terms, without having previously tried pacific measures. Louis XIV. was in the heart of the Netherlands before it was known in Spain that he laid claim to the sovereignty of a part of those rich provinces in right of the queen his wife. The king of Prussia, in 1741, published his manifesto in Silesia, at the head of sixty thousand men. Those princes might have wise and just reasons for acting thus: and this is sufficient at the tribunal of the voluntary law of nations. But a thing which that law tolerates through necessity, may be found very unjust in itself: and a prince who puts it in practice, may render himself very guilty in the sight of his own conscience, and very unjust towards him whom he attacks, though he is not accountable for it to other nations, as he cannot be accused of violating the general rules which they are bound to observe towards each other. But if he abuses this liberty, he gives all nations cause to hate and suspect him; he authorises them to confederate against him; and thus, while he thinks he is promoting his interests, he sometimes irretrievably ruins them.
§336. Equitable conditions to be offered.A sovereign ought, in all his quarrels, to entertain a sincere desire of rendering justice and preserving peace. He is bound, before he take up arms, and also after having taken them up, to offer equitable conditions: and then alone he is justifiable in ap-pealing to the sword against an obstinate enemy who refuses to listen to the voice of justice or equity.
§337. Possessor’s right in doubtful cases.It is the business of the appellant to prove his right; for he ought to shew a good foundation for demanding a thing which he does not possess. He must have a title: and people are not obliged to respect that title any farther than he shews its validity. The possessor may therefore remain in possession till proof be adduced to convince him that his possession is unjust. As long as that remains undone, he has a right to maintain himself in it, and even to recover it by force, if he has been despoiled of it. Consequently it is not allowable to take up arms in order to obtain possession of a thing to which the claimant has but an uncertain or doubtful right. He is only justifiable in compelling the possessor, by force of arms if necessary, to come to a discussion of the question, to accede to some reasonable mode of decision or accommodation, or, finally, to settle the point by articles of agreement upon an equitable footing (§333).
§338. How reparation of an injury is to be sought.If the subject of the dispute be an injury received, the offended party ought to follow the rules we have just established. His own advantage, and that of human society, require, that, previous to taking up arms, he should try every pacific mode of obtaining either a reparation of the injury or a just satisfaction, unless there be substantial reasons to dispense with his recurrence to such measures (§334). This moderation, this circumspection, is the more becoming, and in general even indispensable, as the action which we look upon as an injury does not always proceed from a design to offend us, and is sometimes rather a mistake, than an act of malice. It even frequently happens that the injury is done by inferior persons, without their sovereign having any share in it: and on these occasions it is natural to presume that he will not refuse us a just satisfaction. When some petty officers, not long since, violated the territory of Savoy in order to carry off from thence a noted smuggling chief, the king of Sardinia90 caused his complaints to be laid before the court of France; and Louis XV. thought it no derogation to his greatness to send an embassador extraordinary to Turin to give satisfaction for that violence. Thus an affair of so delicate a nature was terminated in a manner equally honourable to the two kings.
§339. Retaliation.When a nation cannot obtain justice, whether for a wrong or an injury, she has a right to do herself justice. But before she declare war (of which we shall treat in the following book), there are various methods practised among nations, which remain to be treated of here. Among those methods of obtaining satisfaction, has been reckoned what is called the law of retaliation, according to which we make another suffer precisely as much evil as he has done. Many have extolled that law, as being founded in the strictest justice:—and can we be surprised at their having proposed it to princes, since they have presumed to make it a rule even for the deity himself? The ancients called it the law of Rhadamanthus. The idea is wholly derived from the obscure and false notion which represents evil as essentially and in its own nature worthy of punishment. We have shewn above (Book I. §169), what is the true origin of the right of punishing;* whence we have deduced the true and just proportion of penalties (Book I. §171). Let us say then, that a nation may punish another which has done her an injury, as we have shewn above (see Chap. IV. and VI. of this Book), if the latter refuses to give her a just satisfaction: but she has not a right to extend the penalty beyond what her own safety requires. Retaliation, which is unjust between private persons, would be much more so between nations, because it would, in the latter case, be difficult to make the punishment fall on those who had done the injury. What right have you to cut off the nose and ears of the embassador of a barbarian who had treated your embassador in that manner? As to those reprisals in time of war which partake of the nature of retaliation, they are justified on other principles; and we shall speak of them in their proper place. The only truth in this idea of retaliation is, that, all circumstances being in other respects equal, the punishment ought to bear some proportion to the evil for which we mean to inflict it,—the very object and foundation of punishment requiring thus much.
§340. Various modes of punishing, without having recourse to arms.It is not always necessary to have recourse to arms, in order to punish a nation. The offended party may, by way of punishment, deprive her of the privileges she enjoyed in his dominions,—seize on some of her property, if he has an opportunity,—and detain it till she has given him sufficient satisfaction.
§341. Retortion.When a sovereign is not satisfied with the manner in which his subjects are treated by the laws and customs of another nation, he is at liberty to declare that he will treat the subjects of that nation in the same manner as his are treated. This is what is called retortion. There is nothing in this, but what is conformable to justice and sound policy. No one can complain on receiving the same treatment which he gives to others. Thus the king of Poland, elector of Saxony, enforces the law of escheatage only against the subjects of those princes who make the Saxons liable to it. This retortion may also take place with respect to certain regulations, of which we have no right to complain, and which we are even obliged to approve, though it is proper to guard against their effect, by imitating them. Such are the orders relating to the importation or exportation of certain commodities or merchandise. On the other hand, circumstances frequently forbid us to have recourse to retortion. In this respect, each nation may act according to the dictates of her own prudence.
§342. Reprisals.Reprisals are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another,—if she refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it,—the latter may seize something belonging to the former, and apply it to her own advantage till she obtains payment of what is due to her, together with interest and damages,—or keep it as a pledge till she has received ample satisfaction. In the latter case, it is rather a stoppage or a seizure, than reprisals: but they are frequently confounded in common language. The effects thus seized on are preserved while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated, and then the reprisals are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused from the moment that war is declared or hostilities commenced; and then also the effects seized may be confiscated.
§343. What is required to render them lawful.It is only upon evidently just grounds, or for a well-ascertained and undeniable debt, that the law of nations allows us to make reprisals. For he who advances a doubtful pretension, cannot in the first instance demand any thing more than an equitable examination of his right. In the next place, before he proceed to such extremities, he should be able to shew that he has ineffectually demanded justice, or at least that he has every reason to think it would be in vain for him to demand it. Then alone does it become lawful for him to take the matter into his own hands, and do himself justice. It would be too inconsistent with the peace, the repose, and the safety of nations, with their mutual commerce, and the duties which bind them to each other, that each one should be authorised to have immediate recourse to violent measures, without knowing whether there exist on the other side a disposition to do her justice, or to refuse it.
But in order perfectly to understand this article, it must be observed, that if, in a disputable case, our adversary either refuses to pursue or artfully evades the necessary steps for bringing the matter to the proof,—if he does not candidly and sincerely accede to some pacific mode of terminating the dispute,—especially if he is foremost in adopting violent measures,—he gives justice to our cause which before was problematical: we may then have recourse to reprisals, or the seizure of his effects, in order to compel him to embrace the methods of conciliation which the law of nature prescribes. This is the last remaining effort previous to a commencement of open hostilities.
§344. Upon what effects reprisals are made.We have observed above (§81), that the wealth of the citizens constitutes a part of the aggregate wealth of a nation,—that, between state and state, the private property of the members is considered as belonging to the body, and is answerable for the debts of that body (§82): whence it follows, that in reprisals we seize on the property of the subject just as we would on that of the state or sovereign. Every thing that belongs to the nation is subject to reprisals, whenever it can be seized, provided it be not a deposit intrusted to the public faith. As it is only in consequence of that confidence which the proprietor has placed in our goodfaith, that we happen to have such deposit in our hands, it ought to be respected, even in case of open war. Such is the conduct observed in France, England, and elsewhere, with respect to the money which foreigners have placed in the public funds.
§345. The state ought to compensate those who suffer by reprisals.He who makes reprisals against a nation, on the property of its members indiscriminately, cannot be taxed with seizing the property of an innocent person for the debt of another: for in this case the sovereign is to compensate those of his subjects on whom the reprisals fall; it is a debt of the state or nation, of which each citizen ought only to pay his quota.*
§346. The sovereign alone can order reprisals.It is only between state and state that all the property of the individuals is considered as belonging to the nation. Sovereigns transact their affairs between themselves; they carry on business with each other directly, and can only consider a foreign nation as a society of men who have but one common interest. It belongs therefore to sovereigns alone to make and order reprisals on the footing we have just described. Besides, this violent measure approaches very near to an open rupture, and is frequently followed by one. It is therefore an affair of too serious a nature to be left to the discretion of private individuals. And accordingly we see, that, in every civilised state, a subject who thinks himself injured by a foreign nation, has recourse to his sovereign in order to obtain permission to make reprisals. This is what the French call applying for letters of marque.
§347. Reprisals against a nation for actions of its subjects, and in favour of the injured subjects.We may make reprisals against a nation not only for the actions of the sovereign, but also for those of his subjects: and this may take place when the state or the sovereign participates in the act of his subject, and takes it upon himself; which he may do in several ways, as we have shewn in Chap. VI. of this Book.
In the same manner the sovereign demands justice, or makes reprisals, not only for his own concerns, but also for those of his subjects, whom he is bound to protect, and whose cause is that of the nation.
§348. But not in favour of foreigners.But to grant reprisals against a nation in favour of foreigners, is to set himself up as judge between that nation and those foreigners; which no sovereign has a right to do. The cause of reprisals ought to be just: they ought even to be grounded on a denial of justice,—either an actual denial, or one which there is good reason to apprehend (§343). Now what right have we to judge whether the complaint of a stranger against an independent state is just, if he has really been denied justice? If it be objected, that we may espouse the quarrel of another state in a war that appears to us to be just,—to assist her, and even to unite with her,—the case is different. In granting succours against a nation, we do not detain her property or her people that happen to be within our territories under the public faith; and in declaring war against her, we suffer her to withdraw her subjects and her effects, as will hereafter appear. In the case of reprisals granted to our own subjects, a nation cannot complain that we violate the public faith in seizing on her people or her property; because we are under no other obligation to grant security to that property and those people, than what arises from a reasonable supposition that their nation will not in the first instance violate, with respect to us or our subjects, the rules of justice which nations ought to observe towards each other. If she violate them, we have a right to obtain satisfaction; and the mode of reprisals is more easy, safe, and mild, than that of war. We cannot urge the same arguments in justification of reprisals ordered in favour of foreigners. For the security we owe to the subjects of a foreign power does not depend, as a condition, on the security which that power shall grant to all other nations, to people who do not belong to us, and are not under our protection. England having, in 1662, granted reprisals against the United Provinces, in favour of the knights of Malta,* the states of Holland asserted with good reason, that, according to the law of nations, reprisals can only be granted to maintain the rights of the state, and not for an affair in which the nation has no concern.†
§349. Those who have given cause for reprisals ought to indemnify those who suffer by them.The individuals who by their actions have given cause for just reprisals, are bound to indemnify those on whom they fall; and the sovereign ought to compel them to do it. For we are under an obligation to repair the damage we have occasioned by our own fault. And although the sovereign, by refusing justice to the offended party, has brought on the reprisals against his subjects, those who were the first cause of them do not become the less guilty: the fault of the sovereign does not exempt them from repairing the consequences of theirs. However, if they were ready to give satisfaction to the party whom they had injured or offended, and their sovereign has prevented their doing it, they are not bound to do any thing more in that case, than they would before have been obliged to do in order to prevent the reprisals; and it is the sovereign’s duty to repair the additional damage, which is the consequence of his own fault (§345).
§350. What may be deemed a refusal to do justice.We have said (§343) that we ought not to make reprisals, except when we are unable to obtain justice. Now justice is refused in several ways:—First, by a denial of justice, properly so called, or by a refusal to hear your complaints or those of your subjects, or to admit them to establish their right before the ordinary tribunals. Secondly, by studied delays, for which no good reasons can be given,—delays equivalent to a refusal, or still more ruinous. Thirdly, by an evidently unjust and partial decision. But it is necessary that this injustice should be manifest and palpable. In all cases susceptible of doubt, a sovereign ought not to listen to the complaints of his subjects against a foreign tribunal, nor to attempt to screen them from the effects of a sentence passed in due form: for that would be the means of exciting continual troubles. The law of nations directs that states should reciprocally pay that kind of deference to each other’s jurisdiction, for the same reason as the civil law ordains within the state that every definitive sentence, passed in due form, shall be esteemed just. Between nation and nation, the obligation is neither so express nor so extensive: but it cannot be denied, that it is highly conducive to their peace, and conformable to their duties towards human society, to oblige their subjects, in all doubtful cases, and unless where there is a manifest wrong done to them, to submit to the sentences of the foreign tribunals before which their causes have been tried. (See above §84.)
§351. Subjects arrested by way of reprisals.As we may seize the things which belong to a nation, in order to compel her to do justice, we may equally, for the same reason, arrest some of her citizens, and not release them till we have received full satisfaction. This is what the Greeks called Androlépsia.* At Athens the law permitted the relatives of him who had been assassinated in a foreign country, to seize three of the inhabitants of that country, and to detain them till the murderer was punished or delivered up.† But in the practice of modern Europe, this method is seldom resorted to, except with a view to obtain satisfaction for an injury of the same nature,—that is to say, to compel a sovereign to release a person whom he detains unjustly.
The persons, however, who are thus arrested, being detained only as a security or pledge in order to oblige a nation to do justice,—if their sovereign obstinately persists in refusing it, we cannot take away their lives, or inflict any corporal punishment upon them, for a refusal, of which they are not guilty. Their property, their liberty itself, may be staked for the debts of the state; but not their lives, of which man has not the power of disposing. A sovereign has no right to put to death the subjects of a state which has done him an injury, except when they are engaged in war; and we shall see elsewhere, what it is that gives him that right.
§352. Our right against those who oppose reprisals.But the sovereign is authorised to employ forcible means against those who resist him in the exertion of his right, and to pursue such means as far as is necessary to overcome their unjust resistance. It is therefore lawful to repel those who undertake to oppose the making of just reprisals: and if, for that purpose, it be necessary to proceed even so far as to put them to death, the whole blame of that misfortune is imputable to their unjust and inconsiderate resistance. In such a case, Grotius would have us rather abstain from making reprisals.‡ Between private persons, and for things that are not of the highest importance, it is certainly worthy, not only of a christian, but, in general, of every man of principle, rather to abandon his right than to kill the person who unjustly resists him. But, between sovereigns, the case is otherwise. To suffer themselves to be bullied, would be attended with consequences of too serious a nature. The true and just welfare of the state is the grand rule: moderation is ever laudable in itself; but the conductors of nations ought to practise that virtue so far only as it is consistent with the happiness and safety of their people.
§353. Just reprisals do not afford a just cause for war.After having demonstrated the lawfulness of making reprisals when we can no otherwise obtain justice, we may thence readily conclude that a sovereign is not justifiable in making forcible opposition to, or waging war against, the party, who, by ordering or making reprisals in such a case, only exerts his just right.
§354. How we ought to confine ourselves to reprisals, or at length proceed to hostilities.And as the law of humanity directs nations as well as individuals ever to prefer the gentlest measures when they are sufficient to obtain justice,—whenever a sovereign can, by the mode of reprisals, procure a just indemnification or a suitable satisfaction, he ought to confine himself to this method, which is less violent and less fatal than war. On this subject, I cannot avoid noticing an error which is too general to be wholly disregarded. If it happens that a prince, having reason to complain of some injustice or some acts of hostility, and not finding his adversary disposed to give him satisfaction, determines to make reprisals with the view of endeavouring to compel him to listen to the voice of justice before he proceeds to an open rupture,—if, without a declaration of war, he seizes on his effects, his shipping, and detains them as pledges,—you hear certain men cry out that this is robbery. If that prince had at once declared war, they would not have said a word; they would perhaps have praised his conduct. Strange forgetfulness of reason, and of every sound principle! Would we not, at this rate, be tempted to suppose that nations were bound to observe the laws of chivalry,—to challenge each other to the lists,—and decide their quarrels like a pair of doughty champions engaged in regular duel? It is the duty of sovereigns attentively to maintain the rights of their people, and to obtain justice by every lawful means,—still, however, prefer-ring the gentlest methods: and we again repeat the assertion—it is evident that the mode of reprisals, of which we are speaking, is infinitely more gentle and less fatal than that of war. But since, between powers whose strength is nearly equal, reprisals often lead to war, they ought not to be attempted except in the last extremity. In such circumstances, the prince who has recourse to that expedient instead of proceeding to an open rupture, is undoubtedly entitled to praise for his moderation and prudence.
Those who run to arms without necessity, are the scourges of the human race, barbarians, enemies to society, and rebellious violators of the laws of nature, or rather the laws of the common father of mankind.
There are cases, however, in which reprisals would be justly condemnable, even when a declaration of war would not be so: and these are precisely those cases in which nations may with justice take up arms. When the question which constitutes the ground of a dispute, relates, not to an act of violence, or an injury received, but to a contested right,—after an ineffectual endeavour to obtain justice by conciliatory and pacific measures, it is a declaration of war that ought to follow, and not pretended reprisals, which, in such a case, would only be real acts of hostility without a declaration of war, and would be contrary to public faith as well as to the mutual duties of nations. This will more evidently appear, when we shall have explained the reasons which establish the obligation of declaring war previous to a commencement of hostilities.*
But if, from particular conjunctures, and from the obstinacy of an unjust adversary, neither reprisals, nor any of the methods of which we have been treating, should prove sufficient for our defence and for the protection of our rights, there remains only the wretched and melancholy alternative of war, which will be the subject of the following book.
[88. ] “To spare the vanquished and subdue the arrogant.” Virgil, Aeneid VI.853.
[* ] In 1724.
[† ] In 1728.
[89. ] “There is only one hope of safety [for the vanquished]—not to hope for any well-being.” Virgil, Aeneid II, 354.
[* ] When, in the year 1355, they submitted their differences with the dukes of Austria, in relation to the countries of Zug and Glaris, to the arbitration of Charles IV. it was not without this preliminary condition, that the emperor should not touch the liberty of those countries, nor their alliance with the other cantons. Tschudi, p. 429, &c.—Stettler, p. 77.—History of the Helvetic Confederacy, by De Watteville, book iv. at the beginning.
[90. ] Charles Emmanuel III of Sardinia, r. 1730–73.
[* ] “Nam, ut Plato ait, nemo prudens punit quia peccatum est, sed, ne peccetur.” [[“For, as Plato says, no one (who is) prudent punishes because of sin but to stop sinning.” Seneca, de Ira I.XIX.7.]]
[* ] On the subject of reprisals, it is necessary to observe, that when we adopt that expedient as being a gentler mode of proceeding than that of war, the reprisals ought not to be general. The grand pensionary De Witt [[Johan de Witt (1625–72), Dutch statesman very properly remarked—“I do not see any difference between general reprisals and open war.” Note added in 1773/1797 editions.]]
[* ] On that subject, the grand pensionary De Witt wrote as follows—“Nothing can be more absurd than that grant of reprisals: for—to say nothing of its proceeding from a board of admiralty who have no power to grant it without infringing on the sovereign authority of their prince—it is evident that no sovereign can grant or make reprisals, except for the defence or indemnification of his own subjects, whom he is, in the sight of God, bound to protect: but he can never grant reprisals in favour of any foreigner who is not under his protection, and with whose sovereign he has not any engagement to that effect, ex pacto vel foedere. Besides, it is certain that reprisals ought not to be granted except in case of an open denial of justice. Finally, it is also evident, that, even in case of a denial of justice, he cannot empower his subjects to make reprisals, until he has repeatedly demanded justice for them, and added, that, in the event of a refusal, he will be obliged to grant them letters of marque and reprisal.”—From the answers of Mr. Boreel, it appears that this conduct of the British admiralty was strongly condemned by the court of France. The king of England testified his disapprobation of it, and gave orders for the release of the Dutch vessels whose seizure had been permitted by way of reprisal. [[Note added in 1773/1797 editions.]]
[† ] See Bynckershock’s Competent Judge of Embassadors, chap. xxii. §5.
[* ] Ανδροληψια, seizure of men.
[† ] Demosthenes, Orat. adv. Aristocrat.
[‡ ] De Jure Belli et Pacis, lib. iii. cap. ii. §6.
[* ] See book iii. chap. iv.