페이지 이미지
PDF
ePub

he should unbind and arm him, it would no longer be the punishment of a crime, but a trial of courage and good fortune. If you think that you ought only to make use of the same weapons against your enemy that he himself makes use of against you, you must at the same time be of opinion, that his cause is equally good with your own, and therefore that he is entitled to the same advantages. But on the contrary, your enemy stands with respect to Vou, in the situation of a condemned culprit; and so indeed you stand with respect to him; though in the eyes of third persons, who are friends to both parties, your cause and his are equally just, and you are both equally in the right.

Nor ought fraud to be omitted in a definition of war, as it is perfectly indifferent whether stratagem or open force be used against an enemy. There is, I know, a great diversity of opinion upon this subject: Grotius quotes a variety of authorities on both sides of the question.* For my part, I think that every species of deceit is lawful, perfidy only excepted; not that any thing may not lawfully be done against an enemy, but because, when a promise has been made to him, both parties are devested of the hostile character as far as regards that promise. And indeed when the reason of war admits of every mode to destroy an enemy, we cannot account for so many authorities and precedents against making use of fraud or deceit, but that as well the writers on the law of nations as the leaders of armies improperly confound justice, which is the object of our present inquiry, with generosity, which is not uncommon among warriors. Justice in war is indispensable; but generosity is altogether a voluntary act. That leaves us at liberty to destroy an enemy by every possible means; this grants to him every thing that we would wish to be granted to ourselves in the like case; and thus war is carried on as a duel formerly was in those countries in which that mode of terminating differences was admitted. Justice permits the use of numerous armies, of machines, firearms and other imple

[ocr errors]

ments of war, that the enemy is not possessed of; while generosity, on the other hand, forbids it. Justice permits every kind of deceit, except perfidy, as I have before mentioned; generosity does not admit of it, perhaps even though it be employed by the enemy; for cunning is a token of fear, while the magnanimous mind is never afraid. St. Augustine says,* "that when a just war is undertaken, it is of no consequence whether it be carried on by fraud or open force." This clearly applies to justice, and it is in fact justice that he treats of. But when the Roman consuls wrote to king Pyrrhus: "We do not wish to contend with you by means of bribery or fraud"] and at the same time gave him notice of the offer that had been made to them to poison him, they certainly did an act of the greatest generosity.^ Many nations have often preferred generosity to justice; others have preferred justice to generosity: the Romans themselves sometimes displayed the one, sometimes the other. If then, as I have said before, authorities and precedents are reconciled, the point will be clearly settled by recollecting that justice may always be insisted upon, though generosity may not.

Lastly, the definition says, for the sake of asserting their rights. That is to say, in order to defend or recover what is our own; for that is the sole cause, though I do not mean to say that it is the end or object, of war. A nation which has injured another, is considered, with every thing that belongs to it, as being confiscated to the nation that has received the injury. To carry that confiscation into effect may certainly be the object of the war, if the injured nation thinks proper; nor is the war to cease as soon as she has received a reparation or equivalent for the injury suffered. The whole commonwealth, and all the persons as well as the things contained within it, belong to the sovereign with whom we are at war, and in the same manner as we may seize upon the person and upon all

• Quacst. 10. in Josua. f Aul. Gell. L 3. c. 8.

$ The British government acted with equal generosity, when, by their minister, Mr. Fox, they gave notice to the first consul of France, of the offer which had been made to them to assassinate him. T.

the property of our debtor, so a sovereign in war may seize the whole of the subjects and dominions .of his enemy. It is true that we can recover no more of a debtor than what he actually owes us; but in war all social ties are dissolved between states. We make war to subdue the enemy and all that belongs to him, by occupying every thing which belongs to the sovereign of the hostile country, and exercising dominion over all the men and things that are contained within his territories; for war is of so general a nature that it knows no measure or bounds.*

• The Translator has taken the liberty to transpose this paragraph for the sake of perspicuity. As it stands in the original, it ought to come in at the beginning of page 2, of this translation, but as it explains the lait member of our author's definition, it seems best placed at the end. T.

i

CHAPTER II.

Of a Declaration of War.

"\ yTANY things are required by writers on the law of nations in order to make war lawful, and particularly, they think it necessary that it be publicly declared, either by a special proclamation or manifesto, or by sending a herald. This opinion certainly accords with the practice of the modern nations of Europe, and it is perfectly clear, that before recourse can be had to arms, a demand of satisfaction should be made for the injury complained of. But this is not the question now before us; it is whether after a reparation has been demanded and refused, war can be immediately made without a previous declaration?

Albericus Gentilis* is of opinion that it cannot; that a war ought not to be secretly commenced, and that the adverse party's friendship is to be publicly renounced. It is true that by the law of nature there is no necessity for a declaration of war. Grotius] is of that opinion and quotes several authorities in support of it. He contends only that the law of nations requires that a demand should be made, by which it may appear that the party is forced into a war by the refusal of a satisfaction which cannot be otherwise obtained. As to declarations of war,}: he thinks they have been introduced in order that it should appear that the hostilities which are committed are the acts of the whole nation, or of the sovereign, and not merely of daring individuals. Puffendorff§ and Huberus\\ are of the same opinion, and support it by the same arguments. Other writers, and among them Gentilis^[ and Zouch,** think that a declaration of war is necessary, but that it may be dispensed with in certain cases. Hertius]] does

• De JureBcU.1.2.c. 1 ] L. 3. c. 3 § 6. n. I. & 2. % C.3.J 11.

§ De Jure N. & G. L 8. c. 6. § 9. 15 1| De Jure Civitatis, 1.3. § 4. c. 4. n.

27. 1| De Jure Belli, 1. 2. c. 2. De Jure int. gent. P. 2. § 10. Q; 1.

f(, Adnot. ad Pufend. 1.8. c. 6.9.

not deny that the custom of declaring war has been handed down to us by the Germans, but at the same time he is of opinion, that that custom is not obligatory, and that nothing can be said of those who do not conform to it but that they are not to be considered as the most civilized nations.

Christian Thomasius,* a man of sound judgment, considers, in my opinion very properly, a declaration of war as an act of mere humanity, to which no one can be compelled; and he asks, with reason, what difference there is between a war that has and one that has not been declared, and whether there is a different law for the one and for the other? He does not agree with Grotius,] who, quoting a passage from Dion Chrysostom "that wars most frequently take place without a previous declaration," is of opinion that such wars are lawful only by the law of nature. On the contrary, he asserts that they are justified by the law of nations, and immediately afterwards he adds, that this is a question of so interesting a nature that it deserves to be made the subject of a special dissertation.

I shall not, however, undertake to write a dissertation upon it, but I shall devote to its investigation the contents of the present chapter. My opinion is that a declaration of war is not necessary, and that it is one of those things which may very properly be done, but which cannot be insisted upon as a matter of right. A war may begin by mutual hostilities as well as by a declaration. The states-general appear to have understood it so, when by their ordinance of the 17th of January 1665 they declared, that the Dutch ships taken by the English might be claimed, because they had been captured before a declaration of war, and before the commencement of hostilities on the part of the Dutch. War may be justly begun upon the denial of a just demand; for how does that differ from actual hostility? I admit, in the fullest extent, that it is necessary in the first instance to make a demand of what we conceive to be due to us, but not that we are to accompany that demand with threats of hostility, or with an actual de

• Ad Huberum de Jure Civitat. 1. 3. § 4. c. 4. n. 27. f § 6. n. 1,

« 이전계속 »