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| of the Laws of Nations - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


| of the Laws of Nations

It is to be observed that the rules which nations ought to observe or do observe with one another cannot be treated so accurately as private or public law. We find the rules of property pretty exactly established in every nation. The extent of the sovereigns power, as well as the duty of the subject, so far as justice is concerned, are pretty uniform every where. But with respect to the laws of nations, we can scarce mention any one regulation which is established with the common consent of all nations,71 and observed as such at all times. This must necessarily be the case, for where there is no supreme legislative power nor judge to settle differences, we may always expect uncertainty and irregularity.

The laws of nations are such as take place either in peace or war. Those that take place in times of peace have been formerly explained, where it was shewn with respect to aliens that they are entitled to security as to their persons and effects, but that they have no power to make a will, but all goes to the sovereign at their death.72

The laws or rules observed in time of war shall be considered in the following order.

1st. What is a just cause of war, or according to the Latin phrase, quando liceat bellare.

| 2dly. What it is lawful for one nation to do to another in time of war, or quantum liceat in bello, and upon this head we shall consider the differences between the ancient and modern governments and the great modifications of the latter.

3dly. What is due to neutral nations from the belligerant powers.

4thly. The rights of ambassadors between different nations.

1st. Quando liceat bellare? In general whatever is the foundation of a proper law suit before a court of justice may be a just occasion of war.73 The foundation of a law–suit is the violation of some perfect right whose performance may be extorted by force, and is so extorted in a rude society, but in modern times is decided by the magistrate, lest the society should be disturbed by every one taking justice at his own hands. When one nation encroaches on the property of another, or puts to death the subjects of another, imprisons them or refuses them justice when injured, the sovereign is bound to demand satisfaction for the offence, as it is the intention of the government to protect it’s several members from forreign enemies, and if redress be refused there is a foundation for war. In the same manner breach of contract, as when a debt is due by one nation to another, and payment refused, is a very just | occasion of war. If, for example, the King of Prussia should refuse to pay the money advanced for him by the British nation in the time of the last war:74 a declaration of war against him would be just and reasonable. Every offence of the sovereign of one country against the sovereign of another, or of the sovereign against the subject, or of the subject of one country against the subject of another, without giving reasonable satisfaction, may be the cause of a war. There seems to be only one exception to the general rule that every thing that is the subject of a law suit may be a cause of war, and that is with respect to quasi contracts. In this case indeed it is difficult to determine whether a war would be reasonable or not, and we find no instance of a war declared upon the violation of this right. It must be allowed that the introduction of quasi contract was the highest stretch of equity, and except in the Roman law75 it was never perfected nor introduced. In England, if you repair a man’s house in his absence you must trust to him for the payment of it, for you have no action by law. In the same manner, if a Russian do a piece of service to an English merchant, which if he had not done, the merchant would have suffered extremely, and afterwards demand satisfaction for his trouble, if he be refused it and apply to the courts of justice they will tell him that he must depend on the honour of the merchant for payment. Excepting this, every thing which is the foundation of a proper law suit will also make war just and reasonable.

| Quantum liceat <in> bello? How far a nation may push the resentment of an injury against the nation which has injured them, is not easy to determine. The practice of ancient and modern nations differs extremely. In general, when an injury is clearly and distinctly done or when it is plainly intended, and satisfaction refused, resentment is necessary and just. There are a few cases in which it is lawful even without satisfaction being demanded. If a robber was plainly intending to kill you, it would be quite lawfull in you to do all you could to prevent him. The injury is plain. In the same manner, when one nation seems to be conspiring against another, tho’ it may have done no real injury, it is necessary that it should be obliged to declare its intentions and to give security when this demand would not subject it to inconveniences. Tho’ this satisfaction be not demanded, when the King of Prussia saw his dominions about to be overwhelmed by the Elector of Saxony and the Queen of Hungary,76 it was quite right in him to be beforehand with them and to take possession of their territories, and nothing would have been more absurd than for him to have told them that he was going to attack them. On the other hand, if it be only a debt that is due, it would be as unreasonable to go to war without demanding satisfaction, and it is only upon the dilatory and evasive manner of giving satisfaction that a war in this case becomes lawfull. But to consider a little more particularly what is lawfull | in war, suppose a subject of any government is injured, they who have injured him become natural objects of resentment, and also the government which protects him if it refuse satisfaction, but the greater part of the nation is perfectly innocent and knows nothing about the affair. In the late war with France not one out of twenty, either of the French or us, knew any thing of the offences done. Upon what principle or foundation of justice therefore do we take their goods from them, and distress them in all possible ways? This can by no means be founded upon justice and equity properly so called; it must be upon necessity, which indeed in this case is a part of justice. Mr. Hutchinson indeed very ingeniously accounts for this,77 but if we examine his opinion thoroughly we shall find that he has not built his reasoning on a proper foundation. Every nation, says he, maintains and supports the government for it’s own good. If the government commit any offence against a neighbouring soveraign or subject, and it’s own people continue to support and protect it, as it were, in it, they thereby become accessary and liable to punishment along with <it>. As by the Roman law,78 if any of these slaves which every private person kept for his own advantage had done any damnage to another, one of these two things was to be done, he must either keep the slave no longer, or pay the damnage. | In like manner a nation must either allow itself to be liable for the damnages, or give up the government altogether. It is to be observed that in this reasoning, tho’ excessively ingenious, the cases are not in the smallest degree parallel. A man can do with his slave as he pleases, he can either put him away or pay what damnages he has occasioned, but a nation in most cases can neither do the one nor the other. A government is often maintained, not for the nation’s preservation, but it’s own. It was never the doctrine of any public law that the subjects had a right to dispose of the sovereign, not even in England, where his right has been so much contested. How then comes it that a nation should be guilty of an injury which was not in it’s power. The real cause why the whole nation is thought a reasonable object of resentment is that we do not feel for those at a distance as we do for those near us. We have been injured by France, our resentment rises against the whole nation instead of the government, and they, thro’ a blind indiscriminating faculty natural to mankind, become the objects of an unreasonable resentment. In a war between France and us, a Dane would naturaly enter into the same sentiments that we do, and would involve together without distinction both the guilty and the innocent. | This is however quite contrary to the rules of justice observed with regard to our own subjects. We would rather chuse that 10 guilty persons should escape than that one innocent person should suffer.

Another cause is that it is often very difficult to get satisfaction from a subject or from a sovereign that may have offended. They are generaly in the heart of the country and perfectly well secured. If we could get at them, no doubt they would be the first objects of our resentment, but as this is impossible we must make reprizals some other way. We have suffered unjustly on account of our connections, let them also suffer unjustly on account of theirs. In war there must always be the greatest injustice but it is inevitable.

The practice of ancient and modern nations differs widely with regard to the length to which the outrages of war may be carried. Barbarians, if they do not kill these taken in war, may dispose of them as they please. As all who made war were considered as robbers and violators of the peace of society, such punishments were by no means thought inadequate. Even among the Romans, if the battering–ram had once struck the walls no agreement nor capitulation was allowed, but every thing fell into the hands of the conquerors, | and they were at liberty to use it as they pleased. So much was this the case in Cicero’s time that he represents it as the greatest stretch of humanity that a capitulation was allowed after the ram had once struck the walls.79 But tho’ force and fraud were in former periods the great virtues of war, modern manners have come to a greater degree of refinement, both with respect to persons and effects. Captives in war are now by no means made slaves or liable to oppression. An officer is sett free upon his parole or word of honour; and in the war between France and us, they generaly treated our wounded prisoners better than their own wounded soldiers.80 Indeed there is no nation that pushes this point of gallantry farther than we do. When the sixpence a day which was allowed the French prisoners at Edinburgh and elsewhere, was thought insufficient to maintain them on account of the diminution it sustained before it came to their hands by subcontracts, etc., a collection of 10,000£ was generously made for them. In general, prisoners of war are now as well treated as other people.

In the same manner cartel–treaties,81 by which soldiers and sailors are valued at so much | and exchanged at the end of every campaign, the nation which has lost most prisoners paying the balance, is an evidence of our refinement in humanity. In the late war indeed, we refused to enter into any such treaty with France for sailors, and by this wise regulation soon unman’d their navy, as we took a great many more than they. It was the want of humanity, no doubt, which rendered ancient towns so obstinate, for it was better to sustain the most terrible hardships than to surrender. But now the besieged know very well how they will be treated before they capitulate, and will run no great risk before they do so.82

This superiour degree of humanity was introduced during the time of popery. We never find it among the Greeks and Romans, notwithstanding all their attainments. The Pope was considered as the common father of Christendom, the clergy were under his subjection, and he had intercourse by his legates with all the courts of Europe. By this they were more nearly connected, and he obliged them to treat one another with more humanity. The Holy War too, which at that time was undertaken by most of the princes in Europe, made them turn their arms against all those of a different religion, who they thought | deserved to be treated in the most cruel manner. But when they came to be engaged in a war among themselves, as they had all been on one side in that common cause, and as they thought that Christians should not be treated in the same manner with infidells, a greater degree of humanity was introduced. From those causes moderns behave differently from the ancients with regard to the persons of prisoners.

It is more from motives of policey than humanity that the effects of enemies are secured. When a French army invades Germany, the general makes a law that all the people who will live quietly and do not rise against him shall be secure in their persons and possessions, and he will punish a soldier as severely for injuring the peasants of his enemys country as those of his own. But this is not the case in a sea war. An admiral seizes and plunders all the merchant ships he can get. Many of the merchants have done as little harm as the peasants. Why then this distinction? It is the interest of the general not to rob the peasants, because it would be difficult to march an army carrying all it’s provisions thro’ the country of an enemy. But by engageing them to stay | he is supplyed without any other expedient. By this means war is so far from being a dissadvantage in a well cultivated country that many get rich by it. When the Neitherlands is the seat of war all the peasants grow rich, for they pay no rent when the enemy are in the country, and provisions sell at a high rate. This is indeed at the expence of the landlords and better sort of people, who are generaly ruined on such occasions. This is so much the case that all the poor people who are abroad, whenever they hear of a war, will not stay from their native country. It is quite otherways in a sea war. Every ship carrys it’s own provisions and has no dependance for them upon the ships which it meets.

Another cause of modern refinement is that courtesy, or rather gallantry, which takes place between hostile nations, by which even ambassadors are kept at their several courts.

Anciently it was the greatest gallantry to kill the general of an army,83 but nothing could make a person more infamous at present than such a practice. When the King of France84 in person besieged a certain castle, the governour sent to know in what part of the camp the king lodged, that he might not canonade it. The King of Prussia indeed did not grant the princes of Saxony this request, when they | informed him where the royal tent stood, but this was because he was assured that the chief magazine was there. Now if there be any in a nation who have injured more than others, they are the king and generals. How comes it then that it is not now thought lawfull to kill them as well as formerly. The plain reason is that monarchies, whose interest it always is to shew respect to those in authority, set the example at present, but republics, whose interest lyes in adopting the opposite maxim, formerly led the fashion.85

The same policey which makes us not so apt to go to war makes us also more favourable than formerly after an entire conquest. Anciently an enemy forfeited all his possessions, and was disposed of at the pleasure of the conquerors. It was on this account that the Romans had often to people a country anew and send out colonies. It is not so now. A conquered country in a manner only changes masters. They may be subjected to new taxes and other regulations, but need no new people. The conqueror generaly allows them the possession of their religion and laws, which is a practice much better than the ancient. Modern armies too are less irratated at one another because fire arms keep them at a greater distance.86 When they always fought sword in hand their rage and fury were raised to the highest pitch, and as they were mixed with one another the slaughter was vastly greater.

| 3d, we are next to shew what is due to neutral nations from the belligerant powers.87

The rule of justice with respect to neutral nations is that as they have offended no party they should suffer no injury. In a war between France and England, the Dutch should have the liberty of trading to both countries as in the time of peace, as they have injured neither party. Unless when they carry contraband goods or are going to a town that is besieged, they can trade to any part of the country without molestation. A neutral bottom will not however protect the goods of the enemy, nor does the hostility of the bottom, so to speak, forfeit the goods of the neutral power.

There is some difference between the practice of ancient and modern nations with respect to the ius postliminii, or the recovery of what was lost.88 The maxim in time of war anciently was, we are always in the right, and our enemies always in the wrong. Whatever is taken from the enemy is justly taken, whatever is taken from us is unjustly taken. On this account if a Carthaginian had sold to a Roman a Roman ship taken in war, the former owner, whenever he had an opportunity, took it back, as on the above principle | it was unjustly taken from him. Now it is quite otherways. We consider every thing done in war as just and equitable, and neither demand nor would take back any captures made in it. If an English ship be taken by the French and sold to the Dutch, and come to a British harbour, the former owner pretends no claim to her, for he had lost all hopes of it when it had gone into the possession of the enemy.

It is to be observed that there is a very great difference in the conduct of belligerant nations towards one that is neutral, in a land–war from what <it> is in a sea war, which is more the effect of policey than humanity. When an army retreats and the conqueror pursues into a neutral nation, unless it have power to hold out both, it becomes the seat of war, as is often the case, and little or no satisfaction is given for damages. But in a sea war, a ship taken from the most inconsiderable neutral power is always restored. The reason commonly assigned, that it injures their commerce more to take their ships than any thing else, is unsatisfactory, for a land war hurts commerce more than it does. The real reason is that a small country has it not in its power to assert it’s neutrality in a land war, but the smallest is able to do it in a sea war. A small fort can oblige <?ships> of the greatest nation to respect the neutrality of it’s harbour.

| 4. We are in the last place to consider the rights of ambassadors between different nations.

When nations came to have a great deal of business one with another, it was found necessary to send messengers betwixt them, who were the first ambassadors. Anciently, as there was little commerce carried on between different nations, ambassadors were only sent on particular occasions and were what we now call ambassadors extraordinary, who returned home after their business was transacted. We find nothing like resident ambassadors in Rome or Greece; their whole office was on particular occasions to conclude peace, make alliances, etca. The first time that resident ambassador’s were employed was in the beginning of the 17th century, by Ferdinand, King of Spain. Even the word ambassador comes from the Spanish verb ambassare, to send.89 The Pope indeed from the earliest times had residents, or legates, at all the courts of Europe. The very same reason that makes embassies now so frequent induced the Pope formerly to fall upon this method. He had business in all the countries of Europe and a great part of his revenue was collected from them, and as they were continualy attempting to infringe the right he claimed, | he found it necessary to have a person constantly residing at their courts to see that his priviledges were preserved. The Pope from this custom derived several advantages. When commerce was introduced into Europe, and the priviledges of every country, with the duties payable on goods in another, were settled, the merchants of one country had constant claims on those of another; they themselves were strangers in these countries, and would very readily be injured and oftener think themselves so. It became necessary therefore to have one of their countrymen constantly residing at the courts of different nations to protect the rights of his fellow subjects. Anciently, as was observed, there was little intercourse with different nations and therefore no occasion for resident ambassadors; but now, as there is something almost every day to adjust betwixt dealers, it is necessary that there should be some person of weight and authority who has access to the court, to prevent any occasion of quarrel betwixt them. We have already observed that it was Ferdinand of Spain who established this practice. At first it gave great jealousy to the neighbouring nations to keep ambassadors residing at their courts. He indeed pretended to have no right to do this, but by sending an ambassador upon a certain occasion, and starting different questions, he found means of keeping him there. This practice was soon imitated, and it immediately became the universal custom of the European princes, and was so far from being taken amiss that it was | reckoned a grat affront not to send one. Grotius, whose opinions are founded on the practice of ancient nations, declares against resident ambassadors and calls them resident spies.90 But if he had lived in the present age, he would have found that extensive commerce renders it impossible to preserve peace a month, unless grievances be redressed by a man of authority who knows the customs of the country and is capable of explaining what injuries are realy done. The custom of sending ambassadors preserves peace and, by giving intelligence, prevents one country from being invaded by another without timeous notice. When any kind of dispute happens, and the ambassador is recalled, you can have intelligence by your communication with other courts, your ambassador there being informed, for ambassadors in general are acquainted with all the business in Europe.

Though one country might attain some kind of pre–eminence by the influence and assiduity of it’s ambassador, no attention was for a long time given to it, and that balance of power which has of late been so much talked of was never then heard of. Every sovereign had enough to do within his own dominions and could bestow little attention on forreign powers. Before the institution of residents they could have little intelligence. But ever since the begining of the 16th century the nations of Europe were divided into two great alliances. On the one hand were England, Holland, Hungary, Muscovy, etca. | On the other France, Spain, Prussia, Denmark, Sweden, etca. In this manner a kind of alliance was kept up, sometimes one leaving the one side and another joining it, as at present Prussia is with England and Hungary on the other side. A system of this kind was established in Italy about <the> 15th century among the great families there. The resident ambassadors of these nations hinder any one country from domineering over another either by sea or land, and are formed into a kind of council not unlike that of the Amphictyons in ancient Greece. They have power to advise and consult concerning matters but not to determine any, and by combining together can threaten any one country pretending to superiority or making an unreasonable demand. Post offices too are of great importance for procuring intelligence, as communication is open thro’ all these countries both in peace and war, which makes commerce easy and gives notice of every movement.

An ambassador’s person must be sacred and not subject to any of the courts of justice in the country where he resides.91 If he contract debts or do any injury, a complaint must be made to his country. When the Dutch arrested the Russian ambassador in the year 1718, it was complained off as a violation of the laws of nations.92 The goods which an ambassador buys are not subject to any custom. As a sovereign would be exempted from taxes, so must his ambassador who represents him. | When an ambassador makes any attempt to disturb the peace by entering into conspiracies or the like, he may be imprisoned. By way of compliment, and to keep up the dignity of an ambassador, his house is considered as an asylum for offenders. He must be cautious however of this priviledge, and extend his authority only to the protection of debtors and small delinquents, for the right will be broken thro’ if he harbour those guilty of capital crimes. The servants of ambassadors, too, are entitled to some considerable priviledges. If indeed they have contracted debts they may be arrested, but this is never done voluntarily.

All the words that signify these persons employed by one court at another are derived from the Spanish language. The Spanish court was then the most ceremonious in the world, and Spanish dress was every where affected. As ambassadors were obliged to keep up much ceremony, they were hindered in the prosecution of their business. A man that has to negociate matters of the highest importance could not allow so much time to be spent in the endless ceremony of paying and returning visits. Envoys were therefore sent, to whom less ceremony was due, and who could be addressed on any occasion. Their dignity, too, soon advanced and incapacitated them to transact business. | As they continued for sometime, they were called resident ambassadors ordinary, being of an inferiour order to the ambassadors extraordinary. Below this rank is the minister, who resides in the country on account of his own business, and has power to transact any little business of the country to which he belongs.

A consul is a particular magistrate who is a judge of all matters relating to the merchants of his own country, and takes care to do them justice in these places where it may not be very accurately administered.

These are the names and offices of the several persons employed in the forreign affaires of the nation, occasioned by the introduction of commerce, and now become absolutely necessary.

Thus we have considered both the laws of nature and the laws of nations.

Finis.

d

APPENDIX

[71 ]Grotius, I.1.14.

[72 ]88–90 above.

[73 ]Grotius, II.1.2; Hutcheson, M.P., II.15.6 and System, II.350 ff.

[74 ]An annual subsidy of £670,000 was granted to Frederick the Great from April 1758, but it was withheld by Bute in 1762, on account of disagreement with Frederick’s policy.

[75 ]Negotiorum gestio, looking after another’s affairs without his authority, gave one a right of action for expenses: Inst. 3.27.1.

[76 ]In 1756, at the beginning of the Seven Years War.

[77 ]Hutcheson, M.P., III.9.4; System, II.355 ff.

[78 ]The principle of noxal surrender: Inst. 4.8.

[79 ]De Officiis, I.11.35, cited by Grotius, III.11.14.

[80 ]See, e.g., Gentleman’s Magazine, January 1759, 42.

[81 ]Cf. Hume, ‘Of the Populousness of Ancient Nations’, Essays, I.402.

[82 ]Grotius, III.12.8; Hume, loc. cit.

[83 ]Grotius, III.4.18.

[84 ]Louis XIV: A. M. Ramsay, Histoire de Henri de la Tour d’Auvergne, Vicomte de Turenne (1735), I.416.

[85 ]Cf. 79 above.

[86 ]Hume, Essays, I.401.

[87 ]Hutcheson, M.P., III.9.5; System, II.357 ff.

[88 ]Grotius, III.6.3; III.9.15.

[89 ]Wicquefort, L’Ambassadeur et ses fonctions (1681), 4.

[90 ]Grotius, II.18.3, criticizes ambassadors; Cocceius’s note ad loc., quoting Wicquefort, refers to their role as spies.

[91 ]Hutcheson, M.P., III.10.2; System, II.367.

[92 ]As Cannan (279) notes, this is probably a conflation of three cases. The Dutch arrested the Swedish minister in 1717; the English arrested the Russian ambassador for debt in 1708; and the French arrested the Spanish ambassador in 1718.

[d]Two pages are left blank before the Index appears. Both they and the pages of the Index are unnumbered.