CHAPTER IV.

WAR.

XLIX. THE necessity of War, and the laws relating to it, are a consequence of the depraved nature of societies, just as the necessity of the criminal law of a society is a consequence of the depraved nature of the individual (a).

War (b) is the exercise of the international right of action, to which, from the nature of the thing and the absence of any common superior tribunal, nations are compelled to have recourse, in order to assert and vindicate their rights.

A War ought, therefore, to combine the following characteristics:

1. It must be waged by the public authority of the State, and carried on through the agency of those who have been duly commissioned for that purpose by that authority. A War between private individuals who are members of a society cannot exist. The use of force in such a case is a trespass or violation of Municipal Law, and punishable as such, and not war. "Neque, quod "singulorum hominum est, rectè dixeris privatum bellum, 'quia privatum nihil est, nisi ratione publici, quod, ubi

(a) Hooker, Eccles. Pol. b. i. s. 10.

(b) The student of Grotius will perhaps find that he will obtain the most consecutive view of the great master's opinion upon the whole subject of War by reading the whole of 1. i. and l. ii. c. i. to end of s. 17., then leaping to 1. ii. c. xx. s. 38., and from thence reading on to the end of c. v. of 1. iii.

civitas non est, nullum est" (c). According to an early but very sound definition offered by Albericus Gentilis, the precursor of Grotius, "Bellum est publicorum armorum justa contentio "(d).

2. It must have the reparation of injury, the re-establishment of right, the restoration of order in the mutual relations of States, and security against future derangement of these relations, for its object and end.

3. The means, therefore, through which this terrible process is to be executed, must be in strict conformity with this end.

War is not to be considered as an indulgence of blind passions, but as an act of deliberate reason, and, as Lord Bacon says, "no massacre or confusion, but the highest trial of 'right'" (e).

L. This international right of action has become from long usage, implying general consent, from the reason of the thing, from Christian principles, and partly, no doubt, from the peculiar institution of chivalry, well furnished with rules and maxims for its conduct. It is regulated by a code as precise and as well understood as that which governs the intercourse of States in their pacific relations to each other.

The great principle upon which all these rules are framed, is that of, on the one hand, compelling the enemy to do justice as speedily as possible, and, on the other hand, of abstaining from the infliction of all injuries both upon the subjects of the enemy, and upon the Government and subjects of third Powers which do not, certainly and clearly, tend to the accomplishment of this object.

Wanton (f) devastation of the enemy's territory, wanton cruelty exercised towards his subjects, are, therefore, accord

(c) Bynkershoek, Q. J. P. 1. i. c. i.

(d) De Jure Belli, lib. i. cap. ii.

(e) Vide ante, vol. i. p. 11.

(ƒ) "Le droit des gens est naturellement fondé sur ce principe, que

ing to the principles and practice of Christian nations, unjustifiable and illegal.

Nevertheless, it is to be remembered, that as the will of the subject is bound up in that of his Government, it may well be that the consequences of the conduct of his rulers may be attended with injury both to the person and property of the subject, and that the enemy is justified in striking through them at the Government from which he has received a wrong, and for which redress has been denied.

It is, in fact, in many cases, only through the privations and distresses of the subject that his Government will be induced to put an end to the war by according the justice demanded.

Nevertheless, as War is the conflict of societies, that is, of corporate bodies recognising and governed by law in all their actions, War must be and is, as has been stated, carried on with reference to rules and principles of law governing that particular mode of social action; and if this were true in the time of Cicero, who said that in the beginning, the continuing, and the ending of War, justice and faith were largely interested (g), surely it is not less true since the introduction and profession of Christianity; and if the Romans have justly merited our praise for those Fecial (h) institutions by which they sought to invest War with the character and formalities of civil justice, it would be disgraceful to Christian Governments if they assented to the doctrine that in War the furies are to be let loose, and each party is to be at liberty to do that which seems good in his own eyes. It is the more necessary to protest against such a doctrine as, from particular causes, such as the desire to maintain a

les diverses nations doivent dans la paix le plus de bien, et dans la guerre le moins de mal qu'il est possible, sans nuire à leurs véritables intérêts."-Montesquieu, De l'Esprit des Lois, l. i. c. iii.

Blackstone's Comm. b. iv. c. v.

(g) "Sequitur enim de jure belli: in quo et suscipiendo et gerendo et deponendo jus ut plurimum valet et fides."--De Leg. 1. ii. c. xiv. (h) "Horumque ut publici interpretes essent lege sanximus.”—Ib.

particular theory, it has received some colour of sanction from the writings of eminent men.

66

Thus Mr. Hume, arguing "that public utility is the sole origin of justice, and that reflections on the beneficial con"sequences of this virtue are the sole foundation of its "merit" (i), supports his proposition by a reference to public War: "What is it," says he, "but a suspension of justice "among the warring parties?-the laws of War which then "succeed to those of equity and justice, are rules calculated "for the advantage and utility of that particular state in "which men are now placed." Mr. Hume has been well answered by one of his countrymen and a brother philosopher: "I answer," says Professor Reid (k)," when war is "undertaken for self-defence or for reparation of intolerable "injuries, justice authorises it. The laws of War which "have been described by many judicious moralists are all "drawn from the fountain of justice and equity; and every"thing contrary to justice is contrary to the laws of War. "That justice which prescribes one rule of conduct to a "master, another to a servant, one to a parent, another to a 'child, prescribes also one rule of conduct towards a friend, "and another towards an enemy. I do not understand what "Mr. Hume means by the advantage and utility of a state of "War, for which he says the laws of War are calculated, "and succeed to those of justice and equity. I know no laws "of War that are not calculated for justice and equity” (1).

66

"It may be," says Lord Clarendon, "upon a strict survey "and disquisition into the elements and injunctions of the "Christian religion, no war will be found justifiable, but as it "is the process that the law of nature allows and prescribes "for justice sake, to compel those to abstain from doing

(i) Hume's Essays, Of Justice, vol. ii. pt. i. p. 217.

(k) Reid's Essays on the Powers of the Human Mind, vol. iii. p. 435, Essay V., "Of Justice."

66

(1) Mr. Hume argues, consistently, that when a criminal is punished, there is a suspension of the ordinary rules of justice," and that it is suitable that there should be such a suspension.

66

wrong, or to repair the wrong they have done, who can by no other way be induced to do either; as when one sove"reign prince doth an injury to another, or suffers his sub"jects to do it without control or punishment; in either of "which cases the injured prince, in his own right, or the "rights of his subjects, is to demand justice from the other, "and to endeavour to obtain it by all peaceable means that 66 can be used; and then if there be an absolute refusal to "give satisfaction, or such a delay, as in the inconvenience "amounts to a refusal, there is no remedy left but the last process, which is force; since nothing can be in itself more "odious, or more against the nature and institution of sove"reign power than to do wrong and to refuse to administer "justice; and, therefore, the mischiefs which attend, and "which cannot but fall upon the persons and fortunes of "those who are least guilty of the injury and injustice, "because the damage can very hardly reach the prince, but "in his subjects, will be by the Supreme Judge cast upon "his account, who is the original cause and author of the "first transgression" (m).

66

Bynkershoek, rioting in the exercise of his vigorous but coarse intellect, expresses his opinion that everything is lawful against an enemy as such. "You make war," he says, "because you think that your enemy, on "account of the injury which he has done to you, has de"served the destruction of himself and his subjects; and "that being your object, what does it matter how you attain "it? You may therefore kill him when he is unarmed, or "hire an assassin to do so (n), poison him, or make a slave

(m) Lord Clarendon's Essays: Of War, xx. 181.

(n) Dixi, per vim. Non per vim justam, omnis enim vis in bello justa est, si me audias, et ideo justa, cum liceat hostem opprimere, etiam inermem, cum liceat veneno, cum liceat percussore immisso, et igne factitio, quem tu habes, et ille forte non habet; denique cum liceat, ut uno verbo dicam, quomodocunque libuerit.”—Bynkershoek, Q. J. P. 1. i. c. 1. I am sorry to see that the words percussore immisso are incorrectly rendered missile weapons, in the generally useful translation of Mr. Du Ponceau (Philadelphia, 1810).

G