СНАР. X. Of Faith between Enemies,-of Stratagems, Artifices in War, THE Faith to be HE faith of promises and treaties is the bafis of the peace $174 of nations, as we have fhewn in an exprefs chapter (Book facred be II. Ch. XV.) It is facred among men, and abfolutely effential tween ene to their common fafety. Are we then difpenfed from it towards mies. an enemy? To imagine that between two nations at war every duty ceafes, every tie of humanity is broken, would be an error equally grofs and deftructive. Men, although reduced to the neceffity of taking up arms for their own defence and in fupport of their rights, do not therefore cease to be men. They are ftill fubject to the fame laws of nature:-otherwife there would be no laws of war. Even he who wages an unjust war against us is still a man: we ftill owe him whatever that quality requires of us. But a conflict arifes between our duties towards ourfelves, and those which connect us with other men. The right to fecurity authorises us to put in practice, against this unjust enemy, every thing neceffary for repelling him, or bringing him to reafon. But all thofe duties, the exercife of which is not neceffarily fufpended by this conflict, fubfift in their full force they are ftill obligatory on us, both with respect to the enemy and to all the reft of mankind. Now, the obligation of keeping faith is fo far from ceafing in time of war by virtue of the preference which the duties towards ourselves are entitled to, that it then becomes more neceffary than ever. There are a thousand occafions, even in the courfe of the war, when, in order to check its rage, and alleviate the calamities which follow in its train, the mutual interest and safety of both the contending parties requires that they fhould agree on certain points. What would become of prisoners of war, capitulating garrisons, and towns that furrender, if the word of an enemy were not to be relied on? War would degenerate into an unbridled and cruel licentioufnefs: its evils would be reftrained by no bounds; and how could we ever bring it to a conclufion, and re-establish peace? If faith be banished from among enemies, a war can never be terminated with any degree of fafety, otherwife than by the total deftruction of one of the parties. The flightest difference, the leaft quarrel, would produce a war fimilar to that of Hannibal against the Romans, in which the parties fought, not for this or that province, not for fovereignty or for glory, but for the very exiftence of their refpective nations *. Thus it is certain that the § 175. What tra tics are to between enemies. faith of promifes and treaties is to be held facred in war as well as in peace, between enemies as well as between friends. The conventions, the treaties made with a nation, are broken or annulled by a war arifing between the contracting parties, be obferved either because those compacts are grounded on a tacit fuppofition of the continuance of peace, or becaufe each of the parties, being authorifed to deprive his enemy of what belongs to him, takes from him thofe rights which he had conferred on him by treaty. Yet here we mult except those treaties by which certain things are ftipulated in cafe of a rupture, as, for instance, the length of time to be allowed on each fide for the subjects of the other nation to quit the country, the neutrality of a town or province, infured by mutual confent, &c. Since, by treaties of this nature, we mean to provide for what fhall be obferved in cafe of a rupture, we renounce the right of cancelling them by a declaration of war. $176. On what occafions For the fame reafon, all promifes made to an enemy in the courfe of a war are obligatory. For when once we treat with him whilft the fword is unfheathed, we tacitly but neceffarily renounce all power of breaking the compact by way of compenfation or on account of the war, as we cancel antecedent treaties: otherwife it would be doing nothing, and there would be an abfurdity in treating with the enemy at all. But conventions made during a war are like all other compacts and treaties, of which the reciprocal obfervance is a tacit condition (Book II. § 202): we are no longer bound to obferve they may be broken. them towards an enemy who has him.felf been the first to violate them. And even where there is queftion of two feparate conventions which are wholly unconnected with each other,-although we are never juftifiable in ufing perfidy on the plea of our having to do with an enemy who has broken his word on a former occafion, we may nevertheless fufpend the effect of a promife in order to compel him to repair his breach of faith; and what we have promifed him may be detained by way of lecurity, till he has given fatisfaction for his perfidy. Thus, at the taking of Namur in 1695, the king of England caufed marthal Bouflers to be put under arreft, and, notwithstanding the capitulation, detained him prifoner, for the purpofe of obliging France to make reparation for the infractions of the capitulations of Dixmude and Deinfe *. 5177. Of lies. Good-faith confifts not only in the obfervance of our promiles, but alfo in not deceiving on fuch occafions as lay us under any fort of obligation to fpeak the truth. From this fubject arifes a queftion which has been warmly debated in former days, and which appeared not a little intricate at a time when people did not entertain juft or accurate ideas refpecting the nature of a lie. Several writers, and efpecially divines, have made truth a kind of deity, to which, for its own fake, and independently of its confequences, we * Hiftoire de Guillaume III. tom. ii. p. 148. owe owe a certain inviolable refpect. They have abfolutely condemned every fpeech that is contrary to the fpeaker's thoughts: they have pronounced it to be our duty, on every occafion when we cannot be filent, to speak the truth according to the beft of our knowledge, and to facrifice to their divinity our dearest interests, rather than be deficient in respect to her. But philofophers of more accurate ideas and more profound penetration have cleared up that notion, fo confufed, and fo falfe in its confequences. They have acknowledged that truth in general is to be refpected, as being the foul of human fociety, the bafis of all confidence in the mutual intercourfe of men,and, confequently, that a man ought not to fpeak an untruth, even in matters of indifference, lett he weaken the refpect due to truth in general, and injure himfelf by rendering his veracity questionable even when he speaks feriously. But in thus grounding the respect due to truth on its effects, they took the right road, and foon found it eafy to diftinguish between the occafions when we are obliged to fpeak the truth, or declare our thoughts, and thofe when there exifts no fuch obligation. The appellation of hes is given only to the words of a man who fpeaks contrary to his thoughts, on occafions when he is under an obligation to fpeak the truth. Another name (in Latin, falloquium) is applied to any falfe difcourfe to perfons who have no right to infift on our telling them the truth in the particular cafe in queftion. Thefe principles being laid down, it is not difficult to afcertain the lawful ufe of truth or falfehood towards an enemy on particular occafions. Whenever we have exprefsly or tacitly engaged to speak truth, we are indifpenfably obliged to it by that faith of which we have proved the inviolability. Such is the cafe of conventions and treaties:-it is indifpenfably neceffary that they should imply a tacit engagement to speak the truth for it would be abfurd to allege that we do not enter into any obligation of not deceiving the enemy under colour of treating with him:-it would be downright mockery,--it would be doing nothing. We are alfo bound to fpeak the truth to an enemy on all occafions when we are naturally obliged to it by the laws of humanity, that is to fay, whenever the fuccefs of our arms, and the duties we owe to ourfelves, do not clash with the common duties of humanity, fo as to fufpend their force in the prefent cafe, and difpenfe with our performance of them. Thus, when we difmifs prifoners either on ranfom or exchange, it would be infamous to point out the worst road for their march, or to put them in a dangerous one: and fhould the hoftile prince or general inquire after a woman or child who is dear to him, it would be fcandalous to deceive him. But when, by leading the enemy into an error, either by words in which we are not obliged to fpeak truth, or by fome feint, we *Faloquy, falfe-fpeaking, untruth, falfehood. $ 178. Stratagems and artifices in war. we are not bound to obferve that moderation except where we have a fair opportunity of making him prisoner *. CHAP. IX. § 160. Principles of the right my. Of the Right of War, with regard to Things belonging to the A Enemy. State taking up arms in a just cause has a double right against her enemy,-1. a right to obtain poffeffion of her over things property with-held by the enemy; to which must be added the helonging expenfes incurred in the pursuit of that object, the charges of to the ene- the war, and the reparation of damages: for, were the obliged to bear thofe expenfes and loffes, fhe would not fully recover her property, or obtain her due. 2. She has a right to weaken her enemy, in order to render him incapable of fupporting his unjust violence (§ 138)-a right to deprive him of the means of refiftance. Hence, as from their fource, originate all the rights which war gives us over things belonging to the enemy. I speak of ordinary cafes, and of what particularly relates to the enemy's property. On certain occafions, the right of punishing him produces new rights over the things which belong to him, as it also does over his perfon. These we fhall presently confider. $161. The right of feizing on them 6162. What is taken from the enemy by way of penalty. We have a right to deprive our enemy of his poffeflions, of every thing which may augment his ftrength and enable him to make war. This every one endeavours to accomplish in the manner moft fuitable to him. Whenever we have an opportunity, we feize on the enemy's property, and convert it to our own ufe: and thus, befides diminishing the enemy's power, we augment our own, and obtain at least a partial indemnification or equivalent, either for what conftitutes the fubject of the war, or for the expenfes and loffes incurred in its profecution:-in a word, we do ourselves justice. The right to fecurity often authorises us to punish injustice or violence. It is an additional plea for depriving an enemy of *On this fubject, let us notice a trait of Charles XII. of Sweden, in which found reafon and the moft exalted courage are equally confpicuous. That prince being engaged in the fiege of Thorn in Poland, and frequently walking round the city, was easily diftinguished by the cannoneers, who regularly fired upon him as foon as they faw him make his appearance. The principal officers of his army, greatly alarmed at their fovereign's danger, wifhed to have information fent to the governor, that, if the practice was continued, no quarter fhould be granted either to him or to the garrifon. But the Swedish monarch would never permit fuch a ftep to be taken,-telling his officers that the governor and the Saxon cannoneers were perfectly right in acting as they did,-that it was himfelf who made the attack upon them, and that the war would be at an end if they could kill him; whereas they would reap very little advantage even from killing the principal officers of his army. Hiftoire du Nord, p. 26, fome fome part of his poffeffions. This manner of chastising a nation is more humane than making the penalty to fall on the perfons of the citizens. With that view, things of value may be taken from her, fuch as rights, cities, provinces. But all wars do not afford just grounds for inflicting punishment. A nation that has with upright intentions fupported a bad cause, and observed moderation in the profecution of it, is entitled rather to compaffion than refentment from a generous conqueror: and in a doubtful caufe we are to fuppofe that the enemy fincerely thinks himfelf in the right (Prelim. § 21; Book III. § 40). The only circumftance, therefore, which gives an enemy the right to punish his adverfaries, is their evident injuftice unfupported even by any plaufible pretext, or fome heinous outrage in their proceedings: and, on every occafion, he ought to confine the punishment to what his own fecurity and the fafety of nations require. As far as confiftent with prudence, it is glorious to obey the voice of clemency that amiable virtue feldom fails of being more useful to the party who exerts it, than inflexible rigor. The clemency of Henry the Great was of fingular advantage in co-operating with his valour, when that good prince found himfelf compelled to conquer his own kingdom. Those who would have continued his enemies if only fubdued by arms, were won by his goodness, and became affectionate fubjects. What is with-held In fine, we feize on the enemy's property, his towns, his pro- $163. vinces, in order to bring him to reasonable conditions, and compel him to accept of an equitable and folid peace. Thus, much from him, more is taken from him than he owes, more than is claimed of in order to him: but this is done with a defign of restoring the furplus by a oblige him treaty of peace. The king of France was, in the last war, known to give just to declare that he aimed at nothing for himself: and by the treaty' of Aix-la-Chapelle he actually reftored all his conquests *. fatisfaction. § 164. As the towns and lands taken from the enemy are called conquefts, all movable property taken from him comes under the de- Booty. nomination of booty. This booty naturally belongs to the fovereign making war, no less than the conquefts; for he alone has fuch claims against the hoftile nation, as warrant him to seize on her property and convert it to his own ufe. His foldiers, and even his auxiliaries, are only inftruments which he employs in afferting his right. He maintains and pays them. Whatever they do is in his name, and for him. Thus there is no difficulty, even with regard to the auxiliaries. If they are not associates in the war, it is not carried on for their benefit; and they have no more right to the booty than to the conquefts. But the fovereign may grant the troops what share of the booty he pleases. At prefent moft nations allow them whatever they can make on certain occafions when the general allows of plundering,-such *The peace was become abfolutely neceflary to him; and he had, in return for his few conquests, Louisbeurg, with all its dependencies, which were of more importance to him. [Note by the former tranflator.] as |