BOOK III. war. When a party is formed in a state, who no longer obey the CHAP. XVIII. sovereign, and are possessed of sufficient strength to oppose 292. Civil him, or when, in a republic, the nation is divided into two opposite factions, and both sides take up arms,-this is called a civil war. Some writers confine this term to a just insurrection of the subjects against their sovereign, to distinguish that lawful resistance from rebellion, which is an open and unjust resistance. But what appellation will they give to a war which arises in a republic torn by two factions,—or in a monarchy, between two competitors for the crown? Custom appropriates the term of "civil war" to every war between the members of one and the same political society. If it be between part of the citizens on the one side, and the sovereign, with those who continue in obedience to him, on the other, provided the malecontents have any reason for taking up arms, nothing further is required to entitle such disturbance to the name of civil war, and not that of rebellion. This latter term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. The [425] sovereign, indeed, never fails to bestow the appellation of rebels on all such of his subjects as openly resist him: but, when the latter have acquired sufficient strength to give him effectual opposition, and to oblige him to carry on the war against them according to the established rules, he must necessarily submit to the use of the term "civil war." 293. A civil war produces two independent parties. It is foreign to our purpose in this place to weigh the reasons which may authorize and justify a civil war: we have elsewhere treated of the cases wherein subjects may resist the sovereign (Book I. Chap. IV). Setting, therefore, the justice of the cause wholly out of the question, it only remains for us to consider the maxims which ought to be observed in a civil war, and to examine whether the sovereign in particular is, on such an occasion, bound to conform to the established laws of war. A civil war breaks the bands of society and government, or, at least, suspends their force and effect: it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies, two distinct societies. Though one of the parties may have been to blame in breaking the unity of the state and resisting the lawful authority, they are not the less divided in fact. Besides, who shall judge them? who shall pronounce on which side the right or the wrong lies? On earth they have no common superior. They stand therefore in precisely the same predicament as two nations, who engage in a contest, revoked the concessions which he had populace, but he suffered the amnesty been obliged to make to the insurgent to remain in force. and, being unable to come to an agreement, have recourse to arms. BOOK III. CHAP. XVIII. serve the common This being the case, it is very evident that the common 294. They laws of war, those maxims of humanity, moderation, and are to obhonour, which we have already detailed in the course of this work,ought to be observed by both parties in every civil laws of war. war. For the same reasons which render the observance of those maxims a matter of obligation between state and state, it becomes equally and even more necessary in the unhappy circumstance of two incensed parties lacerating their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals:*if he does not religiously observe the capitulations, and all other conventions made with his enemies, they will no longer rely on his word:-should he burn and ravage, they will follow his example; the war will become cruel, horrible, and every day more destructive to the nation. The [426] duke de Montpensier's infamous and barbarous excesses against the reformed party in France are too well known: the men were delivered up to the executioner, and the women to the brutality of the soldiers. What was the consequence? the Protestants became exasperated; they took vengeance of such inhuman practices; and the war, before sufficiently cruel as a civil and religious war, became more bloody and destructive. Who could without horror read of the savage cruelties committed by the Baron Des Adrets? By turns a Catholic and a Protestant, he distinguished himself by his barbarity on both sides. At length it became necessary to relinquish those pretensions to judicial authority over men who proved themselves capable of supporting their cause by force of arms, and to treat them, not as criminals but as enemies. Even the troops have often refused to serve in a war wherein the prince exposed them to cruel reprisals. Officers who had the highest sense of honour, though ready to shed their blood in the field of battle for his service, have not thought it any part of their duty to run the hazard of an ignominious death. Whenever, therefore, a numerous body of men think they have a right to resist the sovereign, and feel themselves in a condition to appeal to the sword, the war ought to be carried on by the contending parties in the same The prince of Condé, commander of Louis XIII.'s forces against the reformed party, having hanged sixty-four officers whom he had made prisoners during the civil war, the Protestants resolved upon retaliation; and the duke de Rohan, who commanded them, caused an equal number of Catholic officers to be hanged. See Memoires de Rohan. The duke of Alva made it a practice to condemn to death every prisoner he took from the confederates in the Netherlands. They, on their part, retaliated, and at length compelled him to respect the law of nations and the rules of war in his conduct toward them. Grotius, Ann. lib. ii. BOOK III. CHAP. XVIII. 295. effects of The tinguished cases. manner as by two different nations: and they ought to leave open the same means for preventing its being carried to outrageous extremities, and for the restoration of peace. When the sovereign has subdued the opposite party, and reduced them to submit and sue for peace, he may except from the amnesty the authors of the disturbances,-the heads of the party he may bring them to a legal trial, and punish them, if they be found guilty. He may act in this manner particularly on occasion of those disturbances in which the interests of the people are not so much the object in view as the private aims of some powerful individuals, and which rather deserve the appellation of revolt than of civil war. Such was the case of the unfortunate duke of Montmorency:he took up arms against the king, in support of the duke of Orleans; and, being defeated and taken prisoner at the battle of Castelnaudari, he lost his life on a scaffold, by the sentence of the parliament of Toulouse. If he was generally pitied by all men of worth and sentiment, it was because they viewed him rather as an opponent to the exorbitant power of an imperious minister, than as a rebel against his sovereign, -and that his heroic virtues seemed to warrant the purity of his intentions.* When subjects take up arms without ceasing to acknowledge the sovereign, and only for the purpose of obtaining a civil war dis- redress of their grievances, there are two reasons for observaccording to ing the common laws of war towards them :-First, an apprehension lest the civil war should become more cruel and destructive by the insurgents making retaliation, which, as we [427] have already observed, they will not fail to do, in return for the severities exercised by the sovereign. 2. The danger of committing great injustice by hastily punishing those who are accounted rebels. The flames of discord and civil war are not favourable to the proceedings of pure and sacred justice more quiet times are to be waited for. It will be wise in the prince to keep his prisoners, till, having restored tranquillity, he is able to bring them to a legal trial. As to the other effects which the law of nations attributes to public war, see Chap. XII. of this Book, and particularly the acquisition of things taken in war,-subjects who take up arms against their sovereign without ceasing to acknowledge him, cannot lay claim to the benefit of those effects. The booty alone, the movable property carried off by the enemy, is considered as lost to the owners; but this is only on account of the difficulty of recognising it, and the numberless inconveniences which would arise from the attempt to recover it. All this is usually settled in the edict of pacification, or the act of amnesty. See the historians of the reign of Louis XIII. But, when a nation becomes divided into two parties ab- BOOK III. solutely independent, and no longer acknowledging a common CHAP. XVIII. superior, the state is dissolved, and the war between the two parties stands on the same ground, in every respect, as a public war between two different nations. Whether a republic be split into two factions, each maintaining that it alone constitutes the body of the state, or a kingdom be divided between two competitors for the crown,-the nation is severed into two parties, who will mutually term each other rebels. Thus there exist in the state two separate bodies, who pretend to absolute independence, and between whom there is no judge (§ 293). They decide their quarrel by arms, as two different nations would do. The obligation to observe the common laws of war towards each other is therefore absolute, -indispensably binding on both parties, and the same which the law of nature imposes on all nations in transactions between state and state. Foreign nations are not to interfere in the internal govern- 2 296. Conment of an independent state. (Book II. § 54, &c.) It be- duct to be observed by longs not to them to judge between the citizens whom discord foreign nahas roused to arms, nor between the prince and his subjects: tions. both parties are equally foreigners to them, and equally independent of their authority. They may, however, interpose their good offices for the restoration of peace; and this the law of nature prescibes to them. (Book II. Ch. I.) But, if their mediation proves fruitless, such of them as are not bound by any treaty, may, with the view of regulating their own conduct, take the merits of the cause into consideration, and assist the party which they shall judge to have right on its side, in case that party requests their assistance or accepts the offer of it: they are equally at liberty, I say, to do this, as to espouse the quarrel of one nation embarking in a war against another. As to the allies of the state thus distracted by civil war, they will find a rule for their conduct in the nature of their engagements, combined with the existing circumstances. Of this we have treated elsewhere. (See Book II. Chap. XII. and particularly §§ 196 and 197.) [ 428 ] BOOK IV. OF THE RESTORATION OF PEACE; AND OF EMBASSIES. BOOK IV. peace is. CHAP. I. OF PEACE, AND THE OBLIGATION TO CULTIVATE IT. 21. What PEACE is the reverse of war: it is that desirable state in which every one quietly enjoys his rights, or, if controverted, amicably discusses them by force of argument. Hobbs has had the boldness to assert, that war is the natural state of man. But if, by "the natural state of man," we understand (as reason requires that we should) that state to which he is destined and called by his nature, peace should rather be termed his natural state. For, it is the part of a rational being to terminate his differences by rational methods; whereas, it is the characteristic of the brute creation to decide theirs by force.* Man, as we have already observed (Prelim. § 10), alone and destitute of succours, would necessarily be a very wretched creature. He stands in need of the intercourse and assistance of his species, in order to enjoy the sweets of life, to develope his faculties, and live in a manner suitable to his nature. Now, it is in peace alone that all these advantages are to be found: it is in peace that men respect, assist, and love each other: nor would they ever de[430] part from that happy state, if they were not hurried on by the impetuosity of their passions, and blinded by the gross deceptions of self-love. What little we have said of the effects will be sufficient to give some idea of its various calamities; and it is an unfortunate circumstance for the human race, that the injustice of unprincipled men should so often render it inevitable. 22. Obliga- Nations who are really impressed with sentiments of hution of culti-manity, who seriously attend to their duty, and are acquainted with their true and substantial interests,—will never vating it. *Nam cum sint duo genera decer- endum est ad posterius, si uti non licet tandi, unum per disceptationem, alte- superiore. Cicero, de Offic. lib. i. cap. rum per vim,-cumque illud proprium 11. sit hominis, hoc belluarum,-confugi |