Part V: Of the Laws of Nations

[Introduction.]

It is to be observed that the rules which nations ought to observe, or do observe with one another, cannot be treated so accurately as private or public law. We find the rules of property pretty exactly established in every nation. The extent of the sovereign’s power, as well as the duty of the subject, so far as justice is concerned, are pretty uniform everywhere. But with respect to the laws of nations, we can scarce mention any one regulation which is established with the common consent of all nations, and observed as such at all times1. This must necessarily be the case, for where there is no supreme legislative power nor judge to settle differences, we may always expect uncertainty and irregularity.

The laws of nations are such as take place either in peace or war. Those that take place in times of peace have been formerly explained, where it was shown with respect to aliens that they are entitled to security as to their persons and effects, but that they have no power to [266] make a will, but all goes to the sovereign at their death1. The laws or rules observed in time of war shall be considered in the following order:

First, what is a just cause of war, or according to the Latin phrase, quando liceat bellare?

Secondly, what it is lawful for one nation to do to another in time of war, or quantum liceat in bello, and upon this head we shall consider the differences between the ancient and modern governments, and the great modifications of the latter.

Thirdly, what is due to neutral nations from the belligerent powers.

Fourthly, the rights of ambassadors between different nations.

[§ 1. When is War Lawful?]

First, quando liceat bellare? In general whatever is the foundation of a proper law suit before a court of justice may be a just occasion of war2. The foundation of a law suit is the violation of some perfect right whose performance may be extorted by force, and is so extorted in a rude society, but in modern times is decided by the magistrate, lest the society should be disturbed by every one taking justice at his own hands. When one nation encroaches on the property of another, or puts to death the subjects of another, imprisons them, or refuses them justice when injured, the sovereign is bound to demand satisfaction for the offence, as it is the intention of the government to protect its several members from foreign enemies, and if redress be refused, there is a foundation for war. In the same manner breach of contract, as when a debt is due by one nation to another, and payment refused, is a very just occasion of war. If, for example, the king of Prussia should [267] refuse to pay the money advanced for him by the British nation in the time of the last war, a declaration of war against him would be just and reasonable. Every offence of the sovereign of one country against the sovereign of another, or of the sovereign against the subject, or of the subject of one country against the subject of another, without giving reasonable satisfaction, may be the cause of a war.

There seems to be only one exception to the general rule, that everything that is the subject of a law suit may be a cause of war, and that is with respect to quasi-contracts. In this case, indeed, it is difficult to determine whether a war would be reasonable or not, and we find no instance of a war declared upon the violation of this right. It must be allowed that the introduction of quasi-contract was the highest stretch of equity, and 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 for the payment of it, for you have no action by law. In the same manner, if a Russian do a piece of 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. Excepting this, everything which is the foundation of a proper law suit, will also make war just and reasonable.

[§ 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, when an injury is clearly and distinctly done, or when it is plainly intended and satisfaction [268] refused, resentment is necessary and just. There are a few cases in which it is lawful even without satisfaction being demanded. If a robber was plainly intending to kill you, it would be quite lawful in you to do all you could to prevent him. The injury is plain. In the same manner, when one nation seems to be conspiring against another, though it may have done no real injury, it is necessary that it should be obliged to declare its intentions, and to give security when this demand would not subject it to inconveniences. Though this satisfaction be not demanded, when the King of Prussia saw his dominions about to be overwhelmed by the Elector of Saxony and the Queen of Hungary1, it was quite right in him to be beforehand with them, and to take possession of their territories, and nothing would have been more absurd than for him to have told them that he was going to attack them. On the other hand, if it be only a debt that is due, it would be as unreasonable to go to war without demanding satisfaction, and it is only upon the dilatory and evasive manner of giving satisfaction that a war in this case becomes lawful.

But to consider a little more particularly what is lawful in war, suppose a subject of any government is injured, they who have injured him become natural objects of resentment, and also the government which protects him if it refuse satisfaction, but the greater part of the nation is perfectly innocent, and knows nothing about the affair. In the late war with France, not one out of twenty, either of the French or us, knew anything of the offences done. Upon what principle or foundation of justice therefore do we take their goods from them, and distress them in all possible ways? This can by no means be founded upon justice and equity, properly so called, it must be upon necessity, which, indeed, in this case, is a part of justice.

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Mr. Hutcheson1 indeed very ingeniously accounts for this, but if we examine his opinion thoroughly, we shall find that he has not built his reasoning on a proper foundation. Every nation, says he, maintains and supports the government for its own good. If the government commit any offence against a neighbouring sovereign or subject, and its own people continue to support and protect it, as it were, in it, they thereby become accessory and liable to punishment along with [it]. As by the Roman law, if any of those slaves which every private person kept for his own advantage, had done any damage to another, one of these two things was to be done, he must either keep the slave no longer, or pay the damage, in like manner a nation must either allow itself to be liable for the damages, or give up the government altogether2. It is to be observed that in this reasoning, though excessively ingenious, the cases are not in the smallest degree parallel. A man can do with his slave as he pleases, he can either put him away, or pay what damages he has occasioned, but a nation in most cases can neither do the one nor the other. 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 had a right to dispose of the sovereign, not even in England, where his right has been so much contested. How then comes it that a nation should be guilty of an injury which was not in its power?

The real cause why the whole nation is thought a reasonable object of resentment is that 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, and they, through a blind indiscriminating faculty natural to mankind, [270] become the objects of an unreasonable resentment. In a war between France and us, a Dane would naturally enter into the same sentiments that we do, and would involve together without distinction both the guilty and the innocent1. This is however quite contrary to the rules of justice, observed with regard to our own subjects. We would rather choose that ten guilty persons should escape than that one innocent person should 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 well secured. If we could get at them no doubt 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 on account of our connexions, let them also suffer unjustly on account of theirs. In war there must always be the greatest injustice, but it is inevitable.

The practice of ancient and modern nations differs widely with regard to the length to which the outrages of war may be carried. Barbarians, if they do not kill those taken in war, may dispose of them as they please. As all who made war were considered as robbers and violators of the peace of society, such punishments were by no means thought inadequate. Even among the Romans, if the battering ram had once struck the walls, no agreement nor capitulation was allowed, but everything fell into the hands of the conquerors, and they were at liberty to use it as they pleased. So much was this the case in Cicero’s time that he represents it as the greatest stretch of humanity that a capitulation was allowed after the ram had once struck the walls2. But though force and fraud were in [271] former periods the great virtues of war, modern manners have come to a greater degree of refinement, both with respect to persons and effects. Captives in war are now by no means made slaves or liable to oppression: an officer is set free upon his parole or word of honour; and in the war between France and us, they generally treated our wounded prisoners better than their own wounded soldiers1. Indeed, there is no nation that pushes this point of gallantry farther than we do. When the sixpence a day which was allowed the French prisoners at Edinburgh and elsewhere, was thought insufficient to maintain them on account of the diminution it sustained before it came to their hands by sub-contracts, &c., a collection of £10,000 was generously made for them. In general prisoners of war are now as well treated as other people.

In the same manner cartel treaties, by which soldiers and sailors are valued at so much, and exchanged at the end of every campaign, the nation which has lost most prisoners paying the balance, is an evidence of our refinement in humanity2. In the late war indeed, we refused to enter into any such treaty with France for sailors, and by this wise regulation soon unmanned their navy, as we took a great many more than they3. It was the want of humanity [272] no doubt 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, and will run no great risk before they do so1.

This superior degree of humanity was introduced during the time of Popery. We never find it among the Greeks and Romans, notwithstanding all their attainments. The Pope was considered as the common father of Christendom, the clergy were under his subjection, and he had intercourse by his legates with all the courts of Europe. By this they were more nearly connected, and he obliged them to treat one another with more humanity. The Holy War too, which at that time was undertaken by most of the princes in Europe, made them turn their arms against all those of a different religion, who they thought deserved to be treated in the most cruel manner, but when they came to be engaged in a war among themselves, as they had all been on one side in that common cause, and as they thought that Christians should not be treated in the same manner with infidels, a greater degree of humanity was introduced. From these causes, moderns behave differently from the ancients with regard to the persons of 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, and 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 interest of the general not to rob the peasants, because it would be difficult to march an army carrying all its provisions through the country of an enemy. But by engaging them to stay he is supplied without any other expedient. By this means 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, for they pay no rent when the enemy are in the country, and provisions sell at a high rate. This is indeed at the expense of the landlords and better sort of people, who are generally ruined on such occasions. This is so much the case that all the poor people who are abroad, whenever they hear of a war, will not stay from their native country. It is quite otherways in a sea war. Every ship carries its own provisions, and has no dependence for them upon the ships which it meets.

Another cause of modern refinement is that courtesy, or rather gallantry, which takes place between hostile nations, by which even ambassadors are kept at their several courts. Anciently it was the greatest gallantry to kill the general of an army1, but nothing could make a person more infamous at present than such a practice. When the king of France in person besieged a certain castle, the governor sent to know in what part of the camp the king lodged, that he might not cannonade it2. The king of Prussia indeed 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. Now if there be any in a nation who have injured more than others, they are the king and generals. How comes it then that it is not now thought lawful to kill them as well as formerly? The plain reason is that monarchies, whose interest it always is to show respect to those in authority, set the example at present, but republics, whose interest lies in adopting the opposite maxim, formerly led the fashion1.

The same policy which makes us not so apt to go to war makes us also more favourable than formerly, 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 people a country anew, and sent out colonies2. It is not so now, a conquered country in a manner only changes masters, they may be subjected to new taxes and other regulations, but need no new people. The conqueror generally allows them the possession of their religion and laws, which is a practice much better than the ancient. Modern armies too, are less irritated at one another, because fire arms keep them at a greater distance3. When they always fought sword in hand, their rage and fury were raised to the highest pitch, and as they were mixed with one another the slaughter was vastly greater.

[§ 3. Of the Rights of Neutral Nations.]

Third, we are next to show what is due to neutral nations from the belligerent powers.

The rule of justice with respect to neutral nations is, [275] that as they have offended no party, they should suffer no injury. In a war between France and England the Dutch should have the liberty of trading to both countries, as in the time of peace, as they have injured neither party. Unless when they carry contraband goods, or are going to a town that is besieged, they can trade to any part of the country without molestation. A neutral bottom will not, however, protect the goods of the enemy, nor does the hostility of the bottom, so to speak, forfeit the goods of the neutral power. There is some difference between the practice of ancient and modern nations with respect to the ius postliminii, or the recovery of what was lost1. The maxim in time of war anciently was, we are always in the right, and our enemies always in the wrong; whatever is taken from the enemy is justly taken, whatever is taken from us is unjustly taken. On this account, if a Carthaginian had sold to a Roman a Roman ship taken in war, the former owner, whenever he had an opportunity, took it back, as on the above principle it was unjustly taken from him. Now it is quite otherways; we consider everything done in war as just and equitable, and neither demand, nor would take back any captures made in it. If an English ship be taken by the French and sold to the Dutch, and come to a British harbour, the former owner pretends no claim to her, for he had lost all hopes of it when it had gone into the possession of the enemy.

It is to be observed that there is a very great difference in the conduct of belligerent nations towards one that is neutral, in a land war, from what [it] is in a sea war, which is more the effect of policy than humanity. When an army retreats, and the conqueror pursues into a neutral nation, unless it have power to hold out both, it becomes the seat of war, as is often the case, and little or no satisfaction is given for damages; but in a sea war, a ship taken from the most inconsiderable neutral power is always restored. [276] The reason commonly assigned, that it injures their commerce more to take their ships than anything else, is unsatisfactory, for a land war hurts commerce more than it does. The real reason is that a small country has it not in its power to assert its neutrality in a land war, but the smallest is able to do it in a sea war. A small fort can oblige of the greatest nation to respect the neutrality of its harbour.

[§ 4. Of the Rights of Ambassadors.]

Four[th], we are in the last place to consider the rights of ambassadors between different nations.

When nations came to have a great deal of business one with another, it was found necessary to send messengers betwixt them, who were the first ambassadors. Anciently, as there was little commerce carried on between different nations, ambassadors were only sent on particular occasions, and were what we now call ambassadors extraordinary, who returned home after their business was transacted. We find nothing like resident ambassadors in Rome or Greece; their whole office was on particular occasions to conclude peace, make alliances, &c. The first time that resident ambassadors were employed, was in the beginning of the seventeenth century, by Ferdinand, King of Spain. Even the word ambassador comes from the Spanish verb, ambassare, to send1. The Pope, indeed, from the earliest times had residents, or legates, at all the courts of Europe. The very same reason that makes embassies now so frequent, induced the Pope formerly to fall upon this method. He had business in all the countries of Europe, and a great part of his revenue was collected from them, and as they were continually attempting [277] to infringe the right he claimed, he found it necessary to have a person constantly residing at their courts, to see that his privileges were preserved. The Pope from this custom derived several advantages.

When commerce was introduced into Europe, and the privileges of every country, with the duties payable on goods in another, were settled, the merchants of one country had constant claims on those of another. They themselves were strangers in those countries, and would very readily be injured, and oftener think themselves so. It became necessary, therefore, to have one of their countrymen constantly residing at the courts of different nations to protect the rights of his fellow-subjects. Anciently, as was observed, there was little intercourse with different nations, and therefore no occasion for resident ambassadors, but now, as there is something almost every day to adjust betwixt dealers, it is necessary that there should be some person of weight and authority who has access to the court, to prevent any occasion of quarrel betwixt them. We have already observed that it was Ferdinand of Spain who established this practice. At first it gave great jealousy to the neighbouring nations to keep ambassadors residing at their courts. He, indeed, pretended to have no right to do this, but by sending an ambassador upon a certain occasion, and starting different questions, he found means of keeping him there. This practice was soon imitated, and it immediately became the universal custom of the European princes, and was so far from being taken amiss that it was reckoned a great affront not to send one. Grotius, whose opinions are founded on the practice of ancient nations, declares against resident ambassadors, and calls them resident spies1, but if he had lived in the present [278] age, he would have found that extensive commerce renders it impossible to preserve peace a month, unless grievances be redressed by a man of authority, who knows the customs of the country, and is capable of explaining what injuries are really done. The custom of sending ambassadors preserves peace, and by giving intelligence, prevents one country from being invaded by another without timeous notice. When any kind of dispute happens and the ambassador is recalled, you can have intelligence by your communication with other courts, your ambassador there being informed, for ambassadors in general are acquainted with all the business in Europe.

Though one country might attain some kind of preeminence by the influence and assiduity of its ambassador, no attention was for a long time given to it, and that balance of power which has of late been so much talked of, was never then heard of. Every sovereign had enough to do within his own dominions, and could bestow little attention on foreign powers. Before the institution of residents they could have little intelligence, but ever since the beginning of the sixteenth century the nations of Europe were divided into two great alliances. On the one hand were England, Holland, Hungary, Muscovy, &c., on the other France, Spain, Prussia, Denmark, Sweden, &c. In this manner a kind of alliance was kept up, sometimes one leaving the one side, and another joining it, as at present Prussia is with England, and Hungary on the other side. A system of this kind was established in Italy about [the] fifteenth century among the great families there. The resident ambassadors of these nations hinder any one country from domineering over another, either by sea or land, and are formed into a kind of council not unlike that [279] of the Amphictyons in ancient Greece. They have power to advise and consult concerning matters, but not to determine any, and by combining together can threaten any one country pretending to superiority, or making an unreasonable demand. Post offices, too, are of great importance for procuring intelligence, as communication is open through all these countries, both in peace and war, which makes commerce easy, and gives notice of every movement.

An ambassador’s person must be sacred, and not subject to any of the courts of justice in the country where he resides. If he contract debts, or do any injury, a complaint must be made to his country. When the Dutch arrested the Russian ambassador in the year 1718, it was complained of as a violation of the laws of nations1. The goods which an ambassador buys are not subject to any custom. As a sovereign would be exempted from taxes, so must his ambassador who represents him2. When an ambassador makes any attempt to disturb the peace by entering into conspiracies or the like, he may be imprisoned. By way of compliment, and to keep up the dignity of an ambassador, his house is considered as an asylum for offenders. He must be cautious, however, of this privilege, and extend his authority only to the protection of debtors and small delinquents, for the right will be broken through if he harbour those guilty of capital crimes. The servants of ambassadors, too, are entitled to some considerable privileges; if indeed they have contracted debts, they may be arrested, but this is never done voluntarily.

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All the words that signify those persons employed by one court at another are derived from the Spanish language. The Spanish court was then the most ceremonious in the world, and Spanish dress was everywhere affected. As ambassadors were obliged to keep up much ceremony, they were hindered in the prosecution of their business. A man that has to negociate matters of the highest importance could not allow so much time to be spent in the endless ceremony of paying and returning visits. Envoys were therefore sent, to whom less ceremony was due, and who could be addressed on any occasion; their dignity, too, soon advanced, and incapacitated them to transact business. As they continued for some time, they were called resident ambassadors ordinary, being of an inferior order to the ambassadors extraordinary. Below this rank is the minister, who resides in the country on account of his own business, and has power to transact any little business of the country to which he belongs.⚓✪

A consul is a particular magistrate who is a judge of all matters relating to the merchants of his own country, and takes care to do them justice in those places where it may not be very accurately administered.

These are the names and offices of the several persons employed in the foreign affairs of the nation, occasioned by the introduction of commerce, and now become absolutely necessary.

Thus we have considered both the laws of nature and the laws of nations.

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