to boast of having practised them. Seducing a subject to be- BOOK III. tray his country, engaging a traitor to set fire to a magazine, CHAP. X. tampering with the fidelity of a governor, enticing him, persuading him to deliver up the town intrusted to his charge, is prompting such persons to commit detestable crimes. Is it honourable to corrupt our most inveterate enemy, and tempt him to the commission of a crime? If such practices are at all excusable, it can be only in a very just war, and when the immediate object is to save our country, when threatened with ruin by a lawless conqueror. On such an occasion (as it. should seem) the guilt of the subject or general who should betray his sovereign when engaged in an evidently unjust cause, would not be of so very odious a nature. He who himself tramples upon justice and probity, deserves in his turn to feel the effects of wickedness and perfidy.* And if ever it is excusable to depart from the strict rules of honour, it is against [377] such an enemy and in such an extremity. The Romans, whose ideas concerning the rights of war were, in general, so pure and elevated, did not approve of such clandestine practices. They made no account of the consul Cæpio's victory over Viriatus, because it had been obtained by means of bribery. Valerius Maximus asserts that it was stained with a double perfidyt; and another historian says that the senate did not approve of it.‡ fers of a It is a different thing merely to accept of the offers of a $181. Whetraitor. We do not seduce him: and we may take advantage ther the of of his crime, while at the same time we detest it. Fugitives traitor may and deserters commit a crime against their sovereign; yet we be accepted. receive and harbour them by the rights of war, as the civil law expresses it.§ If a governor sells himself, and offers for a sum of money to deliver up his town, shall we scruple to take advantage of his crime, and to obtain without danger what we have a right to take by force? But, when we feel ourselves able to succeed without the assistance of traitors, it is noble. * Xenophon very properly expresses the reasons which render treachery detestable, and which authorize us to repress it by other means than open force. "Treachery," says he, " is more dreadful than open war, in proportion as it is more difficult to guard against clandestine plots than against an open attack it is also more odious, because men engaged in overt hostilities may again treat together, and come to a sincere reconciliation; whereas nobody can venture to treat with or repose any confidence in a man whom he has once found guilty of treachery."-Hist. Græc. lib. ii. cap. 3. † Viriati etiam cædes duplicem perfidiæ accusationem recepit; in amicis, quod eorum manibus interemptus est; Quæ victoria, quia empta erat, a § Transfugam jure belli recipimus. Digest. 1. xli. tit. 1, de adquir. Rer. Dom. leg. 51. BOOK III. to reject their offers with detestation. The Romans, in their CHAP. X. heroic ages, in those times when they used to display such $182. Deceitful intelligence. illustrious examples of magnanimity and virtue, constantly rejected with indignation every advantage presented to them by the treachery of any of the enemy's subjects. They not only acquainted Pyrrhus with the atrocious design of his physician, but also refused to take advantage of a less heinous crime, and sent back to the Falisci, bound and fettered, a traitor who had offered to deliver up the king's children.* But when intestine divisions prevail among the enemy, we may without scruple hold a correspondence with one of the parties, and avail ourselves of the right which they think they have to injure the opposite party. Thus, we promote our own interests, without seducing any person, or being in anywise partakers of his guilt. If we take advantage of his error, this is doubtless allowable against an enemy. Deceitful intelligence is that of a man who feigns to betray his own party, with a view of drawing the enemy into a snare. If he does this deliberately, and has himself made the first [ 378] overtures, it is treachery, and an infamous procedure: but an officer, or the governor of a town, when tampered with by the enemy, may, on certain occasions, lawfully feign acquiescence to the proposal with a view to deceive the seducer: an insult is offered to him in tempting his fidelity; and to draw the tempter into the snare, is no more than a just vengeance. By this conduct he neither violates the faith of promises nor impairs the happiness of mankind: for criminal engagements are absolutely void, and ought never to be fulfilled; and it would be a fortunate circumstance if the promises of traitors could never be relied on, but were on all sides surrounded with uncertainties and dangers. Therefore a superior, on information that the enemy is tempting the fidelity of an officer or soldier, makes no scruple of ordering that subaltern to feign himself gained over, and to arrange his pretended treachery so as to draw the enemy into an ambuscade. The subaltern is obliged to obey. But when a direct attempt is made to seduce the commander-in-chief, a man of honour generally prefers, and ought to prefer, the alternative of explicitly and indignantly rejecting so disgraceful a proposal.† * Eâdem fide indicatum Pyrrho regi medicum vitæ ejus insidiantem; eâdem Faliscis vinctum traditum proditorem liberorum regis. Tit. Liv. lib. xlii. cap. 47. When the duke of Parma was engaged in the siege of Bergen-op-zoom, two Spanish prisoners, who were confined in a fort near the town, attempted to gain over a tavern-keeper, and an English soldier, to betray that fort to the duke. These men, having acquainted the governor with the circum He, stance, received orders from him to BOOK III. CHAP. XI. CHAP. XI. OF THE SOVEREIGN WHO WAGES AN UNJUST WAR. gives no HE who is engaged in war derives all his right from the $183. An justice of his cause. The unjust adversary who attacks or unjust war threatens him,-who withholds what belongs to him,-in a right whatword, who does him an injury,-lays him under the necessity ever. of defending himself, or of doing himself justice, by force of arms; he authorizes him in all the acts of hostility necessary for obtaining complete satisfaction. Whoever therefore takes up arms without a lawful cause, can absolutely have no right whatever every act of hostility that he commits is an act of injustice. He is chargeable with all the evils, all the horrors of the § 184. Great war: all the effusion of blood, the desolation of families, the guilt of the rapine, the acts of violence, the ravages, the conflagrations, who undersovereign are his works and his crimes. He is guilty of a crime against takes it. the enemy, whom he attacks, oppresses, and massacres without cause he is guilty of a crime against his people, whom he forces into acts of injustice, and exposes to danger, without reason or necessity, against those of his subjects who are [379] ruined or distressed by the war,-who lose their lives, their property, or their health, in consequence of it: finally, he is guilty of a crime against mankind in general, whose peace he disturbs, and to whom he sets a pernicious example. Shocking catalogue of miseries and crimes! dreadful account to be given to the King of kings, to the common Father of men! May this slight sketch strike the eyes of the rulers of nations,-of princes and their ministers! Why may not we expect some benefit from it? Are we to suppose that the great are wholly lost to all sentiments of honour, of humanity, of duty, and of religion? And, should our weak voice, throughout the whole succession of ages, prevent even one single war, how gloriously would our studies and our labour be rewarded! He who does an injury is bound to repair the damage, or to § 185. His make adequate satisfaction if the evil be irreparable, and even obligations. to submit to punishment, if the punishment be necessary, either as an example, or for the safety of the party offended, and for that of human society. In this predicament stands a prince who is the author of an unjust war. He is under an obligation to restore whatever he has taken,-to send back the prisoners at his own expense,-to make compensation to the enemy for the calamities and losses he has brought on him,— to reinstate ruined families,-to repair, if it were possible, the loss of a father, a son, a husband. BOOK III. injury he has done. But how can he repair so many evils? Many are in their CHAP. XI. Own nature irreparable. And as to those which may be com$186. Dif- pensated by an equivalent, where shall the unjust warrior ficulty of re- find means to furnish an indemnification for all his acts of viopairing the lence? The prince's private property will not be sufficient to answer the demands. Shall he give away that of his subjects?-It does not belong to him. Shall he sacrifice the national lands, a part of the state?-But the state is not his patrimony (Book I. § 91): he cannot dispose of it at will. And, although the nation be, to a certain degree, responsible for the acts of her ruler,-yet (exclusive of the injustice of punishing her directly for faults of which she is not guilty), if she is responsible for her sovereign's acts, that responsibility only regards other nations, who look to her for redress (Book I. § 40, Book II. §§ 81, 82): but the sovereign cannot throw upon her the punishment due to his unjust deeds, nor despoil her in order to make reparation for them. And, were it even in his power, would this wash away his guilt and leave him a clear conscience? Though acquitted in the eyes of the enemy, would he be so in the eyes of his people? It is a strange kind of justice which prompts a man to make reparation for his own misdeeds at the expense of a third person: this is no more than changing the object of his injustice. Weigh all these things, ye rulers of nations! and, when clearly convinced that [380] an unjust war draws you into a multitude of iniquities which all your power cannot repair, perhaps you will be less hasty to engage in it. military are $187. Whe- The restitution of conquests, of prisoners, and of all prother the na-perty that still exists in a recoverable state, admits of no tion and the doubt when the injustice of the war is acknowledged. The bound to nation in her aggregate capacity, and each individual partiany thing. cularly concerned, being convinced of the injustice of their possession, are bound to relinquish it, and to restore every thing which they have wrongfully acquired. But, as to the reparation of any damage, are the military, the generals, officers and soldiers, obliged in conscience to repair the injuries which they have done, not of their own will, but as instruments in the hands of their sovereign? I am surprised that the judicious Grotius should, without distinction, hold the affirmative. It is a decision which cannot be supported, except in the case of a war so palpably and indisputably unjust, as not to admit a presumption of any secret reason of state that is capable of justifying it,-a case in politics which is nearly impossible. On all occasions susceptible of doubt, the whole nation, the individuals, and especially the military, are to submit their judgment to those who hold the reins of government, to the sovereign: this they are bound to do by the essential principles of political society, and of govern De Jure Belli et Pacis, lib. iii. cap. x. ment. What would be the consequence, if, at every step of BOOK III. the sovereign, the subjects were at liberty to weigh the justice CHAP. XI. of his reasons, and refuse to march to a war which might to them appear unjust? It often happens that prudence will not permit a sovereign to disclose all his reasons. It is the duty of subjects to suppose them just and wise, until clear and absolute evidence tells them the contrary. When, therefore, under the impression of such an idea, they have lent their assistance in a war which is afterwards found to be unjust, the sovereign alone is guilty: he alone is bound to repair the injuries. The subjects, and in particular the military, are innocent they have acted only from a necessary obedience. They are bound, however, to deliver up what they have acquired in such a war, because they have no lawful title to possess it. This I believe to be the almost unanimous opinion of all honest men, and of those officers who are most distinguished for honour and probity. Their case, in the present instance, is the same as that of all those who are the executors of the sovereign's orders. Government would be impracticable if every one of its instruments was to weigh its commands, and thoroughly canvass their justice before he obeyed them. But, if they are bound by a regard for the welfare of the state to suppose the sovereign's orders just, they are not responsible for them. CHAP. XII. [ 381 ] OF THE VOLUNTARY LAW OF NATIONS, AS IT REGARDS THE CHAP. XII. enforce the ALL the doctrines we have laid down in the preceding $ 188. Nachapter are evidently deduced from sound principles,-from tions not the eternal rules of justice: they are so many separate articles rigidly to of that sacred law, which nature, or the Divine Author of law of nanature, has prescribed to nations. He alone whom justice ture against and necessity have armed, has a right to make war; he alone each other. is empowered to attack his enemy, to deprive him of life, and wrest from him his goods and possessions. Such is the decision of the necessary law of nations, or of the law of nature, which nations are strictly bound to observe (Prelim. § 7): it is the inviolable rule that each ought conscientiously to follow. But, in the contests of nations and sovereigns who live together in a state of nature, how can this rule be enforced? They acknowledge no superior. Who then shall be judge between them, to assign to each his rights and obligations,—to say to the one, "You have a right to take up arms, to attack your |