Front Page Titles (by Subject) Book X: Of Laws Relative to the Offensive Force. - A Commentary and Review of Montesquieu's 'Spirit of Laws'
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Book X: Of Laws Relative to the Offensive Force. - Antoine Louis Claude, Comte Destutt de Tracy, A Commentary and Review of Montesquieu’s ’Spirit of Laws’ 
A Commentary and Review of Montesquieu’s ’Spirit of Laws’: To which are annexed, Observations on the Thirty First Book by the late M. Condorcet; and Two Letters of Helvetius, on the Merits of the same Work, trans. Thomas Jefferson (Philadelphia: William Duane, 1811).
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Of Laws Relative to the Offensive Force.
The perfection of the laws of nations, would be their confederation. The right of war flows from the right of defence, and the right of conquest from that of war.
Spirit of Laws, Book X.
Under this title, the right of making war, and of conquest, are treated of, and the use which may be made of the armed force, and the means of its establishment.
The right which an association of men possess to make war, is founded on the same principle as that of the right of self-defence in every rational being, and comprehends the person and the interests of the man; for it is with the sole view of defending them with less difficulty and more effect, that he has united in society with other men, and that he has exchanged his right of personal defence, for that of assuring the common aid of society upon an emergency.
Nations, as they respect each other, stand in precisely the same relations as savages, who, belonging to no nation, and being bound by no social obligations among themselves, have no tribunal to which they can apply for redress, no public power of which to claim protection, and consequently each, so circumstanced, must submit or make use of his individual strength in self-defence.
These uncivilized men, however, in order not to be continually exposed to passions, that may lead them to tear each other to pieces like ferocious beasts, would at last be obliged to resort to some means, however imperfect, of mutually understanding each other, and of rendering explanations when any variance should arise, without which their quarrels must last for ever; they must agree, by some sort of convention among themselves, to leave each other unmolested, and they must rely to a certain extent, on the pledge or promise that shall have been made to them, although no really sufficient guarantee be given.
Nations act in the same manner. The most brutal employ negociators, heralds, or ambassadors, who are treated with respect, who make treaties, and exchange hostages. The more civilized go so far as to set bounds to the fury of the passions, while they last. They allow the dead to be buried, the wounded to be taken care of, and the exchange of prisoners, instead of devouring them, or exercising a ferocious vengeance over each other. They usually deem it a duty not to violate a peace without provocation, and not without seeking an explanation of such provocation; and they deem it necessary to make a public declaration, that the explanation offered is not sufficient. All these particulars are comprised in the received usages of every people, and form a kind of law recognized as such among civilized nations; which indeed require some coercive authority to prevent their infraction,10 but which nevertheless compose what is called the law of nations.... jus gentium.
This state of things causes nations to rise from that absolute condition of self-dependence, which we have described, and form rude societies; like the savages, who, through mutual confidence, or necessity for defence, have united in a horde, without having been able to organize a public power competent to secure the rights of each of them. In a society already in this state, the best system of conduct is founded in probity united with prudence; because by a discreet management of the means of self-defence, that confidence which is necessary, is secured by the sentiments of attachment and good will, which this course begets. This is what maybe said in favor of the observance of the laws of nations; it is the only sanction of which it is at present susceptible.
It may appear invidious to civilized nations, to assimilate their relations to each other, with individuals in a rude and unformed society: it is, no doubt, a great advance to have abandoned the state of self-dependence, and to have reached that point at which society is organized and somewhat more perfect, by the establishment of social duties and rights; it is only requisite further to establish among themselves, a common tribunal, and a power sufficient to enforce its decisions, such as takes place in the interior of a confederation, among the members of the confederacy; such as takes place in a society, among the members who compose it.
This third state, in civilization, has always appeared impossible and chimerical; however, it is probably less difficult, than the first, or the two first preceding it. When we reflect what time and pains it required, for men, in their primitive state, to form a language, so as to be well understood; to succeed in obtaining mutual confidence enough for forming small communities, and then larger societies; how much was required to render these societies more generous to each other than ferocious animals; to entertain among each other some moral communications and relations. It appears much less difficult to conceive their moral relations producing a rational organization, and assuming the true character of social relations. There certainly was a time when it appeared much more difficult to form a confederate republic, than it is now to establish a real social compact among several great nations; and there is a greater difference between the original state of man and the Achæan league, than between the actual state of Europe and the confederation of all its parts. The greatest obstacles arise from the monarchies, of which its governments are composed, they not being so well adapted as republics for such a purpose, for reasons assigned in the preceding book. But why insist upon such a project being possible at present? And why should it be declared for ever impossible? There are more things possible than we may imagine; experience proves it daily. Let time act, and let us not be too eager to realize dreams, any more than to combat or damp the hopes of well meaning men.
I am sorry that Montesquieu, in touching the subject of the right of nations to make war, has not explained the fundamental ideas of the right of war, which might have afforded much useful information. But we ought to thank him, at least for having rejected the absurdities of all the older writers on this subject, and for having explicitly declared, that the right of making war has no other foundation than that of the necessity of self-defence; that arms should never be taken up to gratify self-love, or ideas of dignity, much less for what has been called the glory or the vanity of a prince.
From the right of making war flows the right of conquest. A government, by uniting all or a part of the territory of a conquered people, secures to itself a superiority, reaps advantage from its success, diminishes the power of its enemy, and ensures a future tranquillity. Savage nations do not possess the means of accomplishing the end of war, and establishing peace; this is one of the misfortunes of their condition; consequently their wars are cruel and without any limits; and when there have been any examples of bad faith on either side, there is no certainty of peace but in the destruction of one or the other of the contending parties.
Conquest, therefore, though preferable to this dreadful extremity, is an infraction of the natural rights of man, to choose the society of which he may please to become a member, unless the conqueror shall leave the inhabitants of the conquered country at full liberty to emigrate, as the citizens of every state should have a right to do when they think it proper. But as it respects a conquered people, some precautions may be allowed with them, as annexing some conditions to the liberty of emigration, for a certain time, or according to circumstances, which may prevent a renewal of war: these principles respecting war established, conquest may become perfectly just, if the cause of the war has been just.
Two questions arise: when and for what end should conquest be made.... and after peace, how should the conquered countries be treated? Montesquieu explains at large what relates to these two points, in the interests of each of the governments which he has distinguished. He even explains how a nation should conduct itself when it wholly occupies and establishes itself in a country which it has conquered, as the Tartars in China, and the Franks in Gaul.
I shall reject this last supposition, because it is a continuation of the state of warfare, and remains so until the conquered have been expelled, or the two nations are blended the one into the other by consent or force; consequently this does not apply to the establishment of a state of peace: moreover, this supposition can only take place with a barbarous nation, or a people in a very imperfect state of society: now I shall confine myself to civilized nations.
For this last reason, I shall say nothing of states purely democratic or despotic, noticing only those which are governed by an aristocracy under one or several chiefs, and a representative democracy.
These governments, as we have seen, are alike adapted to rule over a large or a small territory; consequently, this consideration cannot make them fear nor desire an encrease of territory; but the convenience of natural boundaries, appears to me a question of an important nature; and I repeat, that a nation should neglect nothing to procure the best possible boundaries, and when obtained should never pass them: therefore so long as a nation has not obtained this end, it should add to its territory, all the countries it can acquire in peace; but if it has attained thereto, and the necessity of providing for future security obliges it to take from its enemy all or part of his territory, it should cede the superfluous acquisition to some other state, the augmentation of whose power is its interest, or form out of it one or several independent states, to which it may give a government similar to its own; taking care that their power shall be such as to preserve itself from disquietude, while it shall be sufficient for their own defence, and save the protecting state from the necessity of being continually required to protect them, or be the means or pretence of new wars.
Respecting the conduct to be held towards the inhabitants of a conquered country of which possession is retained, I think with Montesquieu, that.... like the different kinds of aristocracy, which are not established in exact justice, nor on any principles absolutely fixed.... the object of the conquering government should be to employ such means as are best adapted to gain the affection and assure the attachment of the new subjects, and to treat them more favorably than they had been previously treated. But the representative government being founded on invariable equity and moral justice, can render the acquired people no other nor greater advantages than its own citizens already possess, and this being as much as can be coveted or obtained under any circumstances, is well adapted to gratify those who acquire such equal rights, especially if they had not possessed any rights before.
I must here notice the justice of Montesquieu's reflection, that a people often gain a great deal by being conquered; and I must add, that this is particularly true, of those whose fortune it is to be conquered by a representative government, for they thereby gain both liberty and economy, whether they become a part of the social body by which they are conquered, or are formed into a new state, governed by the same principles of virtue and justice. To be thus conquered, is in truth more like a rescue from bondage, than a subjection; and this is what renders the representative form of government formidable to all others; for whenever another form of government is at variance with a representative government, the people under the other form have in fact, a common interest in the prosperity of a government founded on human rights and justice. This is the reason why the great acquisitions of the French, in their republican period, were so easily incorporated with it, notwithstanding the repugnance of their civil and religious prejudices: and the same will happen with Louisiana and the United States of America, though the intrigues of European statesmen may vainly attempt to prevent it.
If France had made as much use as she might of those immense advantages over her assailants, and not deserted equal principles, after fixing her boundaries by natural limits, such as were reasonable and convenient, it would very soon have been surrounded by states like itself, and which, serving as barriers, would have secured its tranquillity and liberty for ever.
Before leaving this subject, we must notice the profound reflection of Montesquieu, that a republic desirous of remaining free, should have no subjects; this observation is particularly applicable to a representative government, consequently it should have no possessions beyond sea, subject to laws made in the parent country. It might be very useful for her to form colonies, to afford room for superfluous population, or to procure commodious and amicable intercourse, in countries well adapted to maintain advantageous commerce, but they should be emancipated, as soon as they are found competent to exist by themselves, or become a part of the confederation upon common terms with the rest of the society, that is when their population gives them a reasonable title thereto. We have said enough of war and its consequences, let us pass to other objects.
[10.]This is the true reason why the laws of nations are not positive, though they are founded on the eternal laws of nature.... See the definition of the word Law in the first book.