§. 180. Clandestine in fome fingular cafe, and that of the higheft importance. It remains for him to hold out the temptation of a reward, as an inducement to mercenary fouls to engage in the bufinefs. If thofe whom he employs make a voluntary tender of their fervices, or if they be neither fubject to nor in any wife connected with the enemy, he may unquestionably take advantage of their exertions, without any violation of justice or honour. But is it lawful, is it honourable, to folicit the enemy's fubjects to act as spies, and betray him? To this queftion the following section will furnish an answer. It is afked in general whether it be lawful to feduce the enefeduction of my's men, for the purpofe of engaging them to tranfgrefs their the enemy's duty by an infamous treachery? Here a diftinction must be people. made between what is due to the enemy notwithstanding the ftate of warfare, and what is required by the internal laws of confcience, and the rules of propriety. We may lawfully endeavour to weaken the enemy by all poflible means (138) provided they do not affect the common fafety of human fociety, as do poifon and affaffination (§ 155). Now, in feducing a fubject to turn fpy, or the governor of a town to deliver it up to us, we do not ftrike at the foundation of the common fafety and welfare of mankind. Subjects acting as fpies to an enemy do not cause a fatal and unavoidable evil: it is possible to guard against them to a certain degree; and as to the fecurity of fortreffes, it is the fovereign's bufinefs to be careful in the choice of the governors to whom he intrufts them. Those measures, therefore, are not contrary to the external law of nations; nor can the enemy complain of them as odious proceedings. Accordingly they are practised in all wars. But are they honourable, and compatible with the laws of a pure confcience? Certainly no and of this the generals themselves are fenfible, as they are never heard to boast of having practifed them. Seducing a fubject to betray his country, engaging a traitor to fet fire to a magazine, tampering with the fidelity of a governor, enticing him, perfuading him to deliver up the town intrufted to his charge, is prompting fuch perfons to commit deteftable crimes. Is it honourable to corrupt our most inveterate enemy, and tempt him to the commiffion of a crime? If fuch practices are at all excufable, it can be only in a very juft war, and when the immediate object is to fave our country when threatened with ruin by a lawless conqueror. On fuch an occafion (as it should feem) the guilt of the fubject or general who fhould betray his fovereign when engaged in an evidently unjust caufe, would not be of fo very odious a nature. He who himself tramples upon juftice and probity, deferves in his turn to feel the effects of wickedness and perfidy. And if ever it is excufable to depart from the strict rules Xenophon very properly expreffes the reafons which render treachery detef table, and which authorife us to reprefs it by other means than open force. Treachery (fays he) is more dreadful than open war, in proportion as it is more * diflcult rules of honour, it is against fuch an enemy, and in fuch an extremity. The Romans, whofe ideas concerning the rights of war were in general fo pure and elevated, did not approve of fuch clandeftine practices. They made no account of the conful Cæpio's victory over Viriatus, because it had been obtained by means of bribery. Valerius Maximus afferts that it was stained with a double perfidy *; and another hiftorian fays that the fenate did not approve of it †. a traitor It is a different thing merely to accept of the offers of a traitor. § 181. We do not feduce him: and we may take advantage of his crime, Whether while at the fame time we deteft it. Fugitives and deferters the offers of commit a crime against their fovereign; yet we receive and har- may be acbour them by the rights of war, as the civil law expreffes itt. cepted. If a governor fells himfelf, and offers for a fum of money to deliver up his town, fhall we fcruple to take advantage of his crime, and to obtain without danger what we have a right to take by force? But when we feel ourfelves able to fucceed without the affistance of traitors, it is noble to reject their offers with deteftation. The Romans, in their heroic ages, in thofe times when they used to display fuch illuftrious examples of magnanimity and virtue, conftantly rejected with indignation every advantage prefented to them by the treachery of any of the enemy's fubjects. They not only acquainted Pyrrhus with the atrocious defign of his phyfician, but also refused to take advantage of a less heinous crime, and fent back to the Falifci, bound and fettered, a traitor who had offered to deliver up the king's children §. par But when inteftine divifions prevail among the enemy, we may without fcruple hold a correfpondence with one of the ties, and avail ourselves of the right which they think they have to injure the oppofite party. Thus we promote our own interefts, without feducing any perfon or being in anywife partakers of his guilt. If we take advantage of his error, this is doubtlefs allowable against an enemy. Deceitful intelligence is that of a man who feigns to betray $182. his own party, with a view of drawing the enemy into a fnare. Deceit ul "difficult to guard against clandeftine plots than against an open attack: it is alfo "more odious, because men engaged in overt hoftilities may again treat together, "and come to a fincere reconciliation, whereas nobody can venture to treat with "or repofe any confidence in a man whom he has once found guilty of treachery," Hift. Græc. lib. ii. cap. 3. * Viriati etiam cædes duplicem perfidiæ accufationem recepit; in amicis, quod eorum manibus interemptus eft; in Q. Servilio Cæpione confule, quia is fceleris hujus auctor, impunitate promiffa, fuit, victoriamque non meruit, fed emit. lib. ix. cap. 6. Although this initance feems to belong to another head (that of affaffination), I nevertheless quote it here, because it does not appear from other authors that Capio had induced Viriatus's foldiers to affaffinate him. Among others, fee Lutropius, lib. vi. cap. 8. + Quæ victoria, quia empta erat, a fenatu non probata. Auctor de Viris IlJuft. cap. 71. Transfugam jure belli recipimus. Digeft. 1. xli. tit. 1, de adquir. Rer. Dom. Jeg. 5 Eadem fide indicatum Pyrrho regi medicum vitæ ejus infidiantem; cadem Falifcis vinctum trad.tum proditorem liberorum regis. Tit. Liv. lib. xlii. cap. 47. intelli gence. If he does this deliberately, and has himself made the first over- § 183. An unjust war gives no right whatever. CHAP. XI. Of the Sovereign who wages an unjust War. E who is engaged in war derives all his right from the Hjuftice of his caufe. The unjust adversary who attacks or threatens him,-who with-holds what belongs to him,—in a word, who does him an injury,-lays him under the neceffity of defending himself, or of doing himfelf juftice, by force of arms: he authorises him in all the acts of hoftility neceffary for obtaining complete fatisfaction. Whoever therefore takes up arms without a lawful caufe, can abfolutely have no right whatever: every act of hoftility that he commits is an act of injuftice. $ 184. He is chargeable with all the evils, all the horrors of the war: Great guilt all the effufion of blood, the defolation of families, the rapine, reign who the acts of violence, the ravages, the conflagrations, are his undertakes works and his crimes. He is guilty of a crime against the ene it. * When the duke of Parma was engaged in the fiege 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 foldier, to betray that fort to the duke. These men having acquainted the governor with the circumftance, received erders from him to feign acquiefcence; and, accordingly, having made all their arrange ments with the duke of Parma for the furprifol of the fort, they gave notice of every particular to the governor. He, in confequence, kept hinfell prepared to give a proper reception to the Spaniards, who fell into the frare, and loft near three thousand men on the occalion. Grotius, Hift. of the Disturb. in the Netherlands, book i my, my, whom he attacks, oppreffes, and maffacres, without caufe: he is guilty of a crime against his people, whom he forces into acts of injuftice, and expofes to danger, without reafon or ne ceffity, against those of his fubjects who are ruined or diftreffed by the war,-who lose their lives, their property, or their health, in confequence of it: finally, he is guilty of a crime against mankind in general, whose peace he disturbs, and to whom he fets a pernicious example. Shocking catalogue of miferies and crimes! dreadful account to be given to the king of kings, to the common father of men! May this flight sketch strike the eyes of the rulers of nations, of princes, and their minifters ! Why may not we expect fome benefit from it? Are we to fuppofe that the great are wholly lost to all sentiments of honour, of humanity, of duty, and of religion? And fhould our weak voice, throughout the whole fucceffion of ages, prevent even one fingle war, how gloriously would our ftudies and our labour be rewarded! tions. He who does an injury is bound to repair the damage, or to $185. make adequate fatisfaction if the evil be irreparable, and even to His obligafubmit to punishment, if the punishment be neceffary, either as an example, or for the fafety of the party offended, and for that of human fociety. In this predicament stands a prince who is the author of an unjust war. He is under an obligation to reftore whatever he has taken,-to fend back the prisoners at his own expenfe, to make compenfation to the enemy for the calamities and loffes he has brought on him,-to reinftate ruined families,―to repair, if it were poffible, the lofs of a father, a son, a husband. · he But how can he repair fo many evils? Many are in their own § 186. nature irreparable. And as to those which may be compensated Difficulty by an equivalent, where fhall the unjust warrior find means to of repairing the injury furnish an indemnification for all his acts of violence? The has done. prince's private property will not be fufficient to answer the demands. Shall he give away that of his fubjects?-It does not belong to him? Shall he facrifice the national lands, a part of the state?-But the ftate is not his patrimony (Book I. § 91): he cannot dispose of it at will. And although the nation be, to a certain degree, refponfible for the acts of her ruler,-yet (exclufive of the injuftice of punishing her directly for faults of which The is not guilty) if fhe is refponfible for her fovereign's acts, that refponfibility only regards other nations, who look to her for redrefs (Book 1. § 40, Book II. §§ 81, 82): but the fovereign cannot throw upon her the punishment due to his unjuft deeds, nor defpoil 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 confcience? Though acquitted in the eyes of the enemy, would he be fo in the eyes of his people? It is a ftrange kind of juftice which prompts a man to make reparation for his own mifdeeds at the expenfe of a third perfon: this is no more than changing the object of his injuftice. Weigh all these things, ye rulers of nations! and when clearly convinced $187. Whether bound to convinced that an unjust war draws you into a multitude of iniquities which all your power cannot repair, perhaps you will be lefs hafty to engage in it. The reftitution of conquefts, of prifoners, and of all property the nation that fill exifts in a recoverable state, admits of no doubt when and the mi- the injuftice of the war is acknowledged. The nation in her aggregate capacity, and each individual particularly concerned, any thing. being convinced of the injuftice of their poffeffion, are bound to relinquish it, and to reftore every thing which they have wrongfully acquired. But as to the reparation of any damage, are the military, the generals, officers, and foldiers, obliged in confcience to repair the injuries which they have done, not of their own will, but as inftruments in the hands of their fovereign? I am furprised that the judicious Grotius fhould, without diftinction, hold the affirmative*. It is a decifion which cannot be supported except in the cafe of a war fo palpably and indifputably unjuft, as not to admit a prefumption of any fecret reafon of state that is capable of justifying it,-a cafe in politics, which is nearly im poffible. On all occafions fufceptible of doubt, the whole nation, the individuals, and efpecially the military, are to fubmit their judgment to thofe who hold the reins of government,-to the fovereign: this they are bound to do, by the effential principles of political fociety and of government. What would be the confequence, if, at every step of the fovereign, the subjects were at liberty to weigh the juflice of his reafons, and refufe to march to a war which might to them appear unjuft? It often happens that prudence will not permit a fovereign to disclose all his reafons. It is the duty of fubjects to fuppofe them juft and wife, until clear and abfolute evidence tells them the contrary. When, therefore, under the impreffion of fuch an idea, they have lent their affistance in a war which is afterwards found to be unjuft, the fovereign alone is guilty: he alone is bound to repair the injuries. The fubjects, and in particular the military, are innocent: they have acted only from a neceffary obedience. They are bound, however, to deliver up what they have acquired in such a war, because they have no lawful title to poffefs it." This I believe to be the almost unanimous opinion of all honest men, and of thofe officers who are most diftinguifhed for honour and probity. Their cafe, in the prefent inftance, is the fame as that of all those who are the executors of the fovereign's orders. Government would be impracticable if every one of its inftruments was to weigh its commands, and thoroughly canvafs their justice before he obeyed them. But if they are bound by a regard for the welfare of the ftate to fuppofe the fovereign's orders juft, they are not refponfible for them. * De Jure Belli et Pacis, lib. iii, cap. 10. |