Chap 1-2: War

Chap 1: When is War Lawful?

  • First, quando liceat bellare?
  • In general, whatever is the foundation of a proper lawsuit may be a just occasion of war.
    • The lawsuit’s foundation is the violation of some perfect right whose performance may be extorted by force.
      • It is so extorted in a rude society.
    • But in modern times, it is decided by the magistrate, lest the society should be disturbed by every person taking justice at his own hands.
  • The sovereign is bound to demand satisfaction for the following offences:
    • When one nation:
      • encroaches on the property of another, or
      • kills the subjects of another,
      • imprisons the subjects of another, or
      • refuses them justice when injured.
  • This is because the government intends to protect its members from foreign enemies.
    • There is a foundation for war if redress be refused.
  • In the same way, a breach of contract is a very just occasion of war.
    • For example, when payment for a debt by one nation to another, is refused.
      • If the king of Prussia [267] refuses to pay the money lent to him by Britain during the last war, war can be declared against him justly and reasonably.
  • The following may be the cause of a war:
    • every offence of the following that does not give reasonable satisfaction:
      • the sovereign of one country against the sovereign of another, or
      • the sovereign against the subject of another country, or
      • the subject of one country against the subject of another.

 

  • There is only one exception to the general rule.
    • Everything that is the subject of a lawsuit may be a cause of war, and that is with respect to quasi-contracts.
  • In this case, it is difficult to determine whether a war would be reasonable or not.
    • There has been no war declared on the violation of this right.
  • The introduction of quasi-contract was the highest stretch of equity.
    • Except in the Roman law, it was never perfected nor introduced.
  • In England, if you repair a man’s house in his absence, you must trust to him to pay for it because you have no action by law.
    • In the same way, if a Russian does a service to an English merchant, which, if he had not done, the merchant would have suffered extremely, and afterwards demand satisfaction for his trouble, if he be refused it and apply to the courts of justice, they will tell him that he must depend on the honour of the merchant for payment.
  • Except for this, everything which is the foundation of a proper law suit, will also make war just and reasonable.

 


Chap 2: What is Lawful in War?

  • [Second,] quantum liceat [in] bello?
  • How far a nation may push the resentment of an injury against the nation which has injured them, is not easy to determine.
    • The practice of ancient and modern nations differs extremely.
  • In general, resentment is necessary and just when an injury:
    • is clearly and distinctly done, or
    • is plainly intended and satisfaction [268] refused.
  • There are a few cases in which it is lawful even without satisfaction being demanded.
    • If a robber intended to kill you, it would be quite lawful for you to do all you could to prevent him.
    • The injury is plain.
  • In the same way, when one nation seems to be conspiring against another, though it may have done no real injury, it should be obliged to:
    • declare its intentions, and
    • give security when this demand would not subject it to inconveniences.
  • Though this satisfaction is not demanded, when the King of Prussia saw his dominions about to be overwhelmed by the Elector of Saxony and the Queen of Hungary, it was quite right in him to be beforehand with them, and to take possession of their territories.
    • It would have been absurd for him to tell them that he was going to attack them.
  • On the other hand, if it were only a debt that is due, it would be as unreasonable to go to war without demanding satisfaction.
    • In this case, it is only on the dilatory and evasive manner of giving satisfaction that a war becomes lawful.
  • Suppose a subject of any government is injured.
    • His offenders become natural objects of resentment.
    • The government which protects him is also resented if it refuses satisfaction even if most of the nation is:
      • perfectly innocent, and
      • knows nothing about the affair.
    • In the recent war with France, less than 5% of the French or British knew anything of the offences done.
  • On what principle of justice do we take their goods from them, and distress them in all ways?
    • This cannot be founded on justice and equity.
    • It must be founded on necessity.
      • In this case, necessity is a part of justice.

[269]

  • Mr. Hutcheson very ingeniously accounts for this.
    • But he has not built his reasoning on a proper foundation.
    • He says that every nation maintains and supports the government for its own good.
      • If the government commits any offence against a neighbouring sovereign or subject, and its own people continue to support and protect it, they thereby become accessory and liable to be punished with it.
  • By the Roman law, if any of those slaves had done any damage to another, the owner must:
    • keep the slave no longer, or
    • pay the damage
  • Similarly, a nation must:
    • allow itself to be liable for the damages, or
    • give up the government altogether.
  • This reasoning is excessively ingenious.
    • But the cases are not parallel at all.
  • A man can do with his slave as he pleases.
    • He can put him away or pay what damages he has caused.
  • But in most cases, a nation cannot either.
  • A government is often maintained, not for the nation’s preservation, but its own.
    • It was never the doctrine of any public law that the subjects could dispose of the sovereign.
    • This doctrine is not even in England, where the sovereign’s right has been so much contested.
  • How then can a nation be guilty of an injury which it could not do?
  • The whole nation is a reasonable object of resentment because we do not feel for those at a distance as we do for those near us.
    • We have been injured by France.
    • Our resentment rises against the whole nation instead of the government.
    • Through a blind, indiscriminating faculty natural to mankind, [270] they become the objects of an unreasonable resentment.
  • In a war between France and England, a Dane would naturally enter into the same sentiments that we do.
    • He would get involved without distinguishing the guilty and the innocent.
  • However, this is quite contrary to the rules of justice, observed with regard to our own subjects.
    • We would rather let 10 guilty persons escape than let one innocent person suffer.
  • Another cause is that it is often very difficult to get satisfaction from a subject or from a sovereign that may have offended.
    • They are generally in the heart of the country and perfectly secured.
    • If we could get at them, they would be the first objects of our resentment.
    • But as this is impossible, we must make reprisals some other way.
  • We have suffered unjustly because of our connections.
    • Let them also suffer unjustly on account of theirs.
  • In war, there must always be the greatest injustice, but it is inevitable.

 

  • Ancient and modern nations differs widely with regard to the length to which war may be carried.
    • If barbarians do not kill those taken in war, they can dispose of prisoners as they please.
    • All who made war were considered as robbers and violators of the peace of society.
      • Such punishments were thought adequate.
  • Even among the Romans, if the battering ram had once struck the walls, no agreement nor capitulation was allowed.
    • Everything fell into the hands of the conquerors.
      • They were at liberty to use it as they pleased.
    • So much was this the case in Cicero’s time.
      • To him, it was the greatest stretch of humanity that a surrender was allowed after the ram had once struck the walls.
  • Force and fraud were [271the great virtues of war in the past.
    • Modern manners have come to a greater degree of refinement with respect to persons and effects.
    • Captives in war are now not made slaves.
      • They are not liable to oppression.
      • An officer is set free on his parole or word of honour.
      • In the war between France and England, they generally treated our wounded prisoners better than their own wounded soldiers.
      • There is no nation that pushes this point of gallantry farther than we do.
        • Six-pence a day was allowed the French prisoners at Edinburgh and elsewhere.
          • When this was insufficient to maintain them because of its reduction before it came to their hands by sub-contracts, etc., £10,000 was generously collected for them.
  • In general, prisoners of war are now as well treated as other people.

 

  • In the same way, cartel treaties are an evidence of our refinement in humanity.
    • In it, soldiers and sailors are valued and exchanged at the end of every campaign.
    • The nation which has lost most prisoners pays the balance.
  • In the recent war, we refused to enter into any such treaty with France for sailors.
    • By this wise regulation, we soon unmanned their navy since we took much more than they.
  • It was the lack of humanity [272] which rendered ancient towns so obstinate.
    • For it was better to sustain the most terrible hardships than to surrender.
  • But now, the besieged know very well how they will be treated before they capitulate.
    • They will run no great risk before they do so.

 

  • This superior degree of humanity was introduced during the time of Popery.
    • We never find it among the Greeks and Romans, despite all their attainments.
  • The Pope was considered as the common father of Christendom.
    • The clergy were under his subjection.
    • He had connections with all the European courts through his legates.
      • He obliged them to treat one another with more humanity.
  • The Holy War was then undertaken by most of the European princes.
    • It made them turn their arms against people of a different religion.
    • They thought those people deserved to be treated most cruelly.
    • But when they went to war among themselves, a greater degree of humanity was introduced since they:
      • had all been on one side in that common cause, and
      • thought that Christians should not be treated in the same way as infidels.
  • From these causes, moderns behave differently from the ancients with regard to prisoners.

 

  • It is more from motives of policy than humanity that the effects of enemies are secured.
    • When a French army invades Germany, the general makes a law that all the people who will live quietly, and do not rise against him, shall be secure in their persons and possessions.
    • He will punish a soldier as severely for injuring the peasants of his enemy’s country as those of his own.
  • But this is not the case in a sea war.
    • An admiral seizes and plunders [273] all the merchant ships he can get.
    • Many of the merchants have done as little harm as the peasants.
    • Why then this distinction?
      • It is the general’s interest not to rob the peasants because it would be difficult to march an army carrying all its provisions through the enemy’s country.
      • But by engaging them to stay, he is supplied without any other expedient.
  • Through this, war is so far from being a disadvantage in a well cultivated country, that many get rich by it.
    • When the Netherlands is the seat of war, all the peasants grow rich, because:
      • they pay no rent when the enemy are in the country, and
      • provisions sell at a high rate.
    • This is at the expense of the landlords and the better sort of people.
      • They are generally ruined on such occasions.
      • Whenever the poor people abroad hear of a war, they will not stay from their native country.
  • It is quite opposite in a sea war.
    • Every ship carries its own provisions.
    • It is not dependent on the country than on the ships which it meets.
  • Another cause of modern refinement is that gallantry between hostile nations, by which even ambassadors are kept at their several courts.
    • Anciently it was the greatest gallantry to kill an army’s general.
    • But nowadays, it would make a person most infamous.
  • When the king of France besieged a certain castle, the governor was sent to know where the king lived so that he might not bombard it.
    • The king of Prussia did not grant the princes of Saxony this request, when they [274] informed him where the royal tent stood
    • But this was because he was assured that the chief magazine was there.
  • Nowadays, the king and generals injure more than others.
    • Why is it not thought lawful to kill them as before?
    • This is because monarchies set the current example.
      • Their interest is always is to show respect to those in authority.
    • But the interest of republics is in adopting the opposite maxim.
      • Republics were followed before the current monarchies.

 

  • The same policy which makes us not so apt to go to war makes us also more favourable than before, after an entire conquest.
    • Anciently, an enemy:
      • forfeited all his possessions, and
      • was disposed of at the pleasure of the conquerors.
  • It was on this account that the Romans had often to populate a country anew, and then send out colonies.
    • It is not so now.
    • A conquered country only changes masters.
    • They may be subjected to new taxes and other regulations, but need no new people.
    • The conqueror generally permits their religion and laws.
      • This is a much better practice than the ancient one.
    • Modern armies also are less irritated at one another because firearms keep them farther.
  • When they always fought with swords, their rage and fury were raised to the highest pitch.
    • The slaughter was vastly greater since they were mixed with one another.

Words: 2,316
Advertisements