International Justice should be prosecuted, which ought to sink deep into the hearts of Christian Governments. Grotius reminds us,(ƒ) that upon the same principle as the Romans consulted the Collegium Feciale, the early Christian Emperors rarely made war without consulting the bishops, in order that, if religion interposed any impediment, they might be made aware of it; and among the most striking speeches in Shakspere, is the adjuration of Henry V. to the Archbishop of Canterbury, to speak boldly his opinion as to the lawfulness of the intended war against France; as the verses contain an admirable admonition upon the terrible wickedness of an unjust war, it *may perhaps be allowed to relieve the necessary dryness of a legal discussion, and to close this chapter [*66] by their citation:

"And God forbid, my dear and faithful lord,

That ye should fashion, bow, or wrest your reading,

Or nicely charge your understanding soul
With opening titles miscreate, whose right
Suits not in native colours with the truth.
For God doth know how many now in health
Shall drop their blood in approbation
Of what your reverence shall incite us to.
Therefore, take heed how you impawn our person,
How you awake the sleeping sword of war;
We charge you, in the name of God, take heed:
For never two such kingdoms did contend

Without much fall of blood; whose guiltless drops

Are every one a woe, a sore complaint

'Gainst him whose wrongs give edge unto the swords
That make such waste in brief mortality.

Under this conjuration speak, my lord,

And we will hear, note, and believe in heart

That what you speak is in your conscience washed,
As pure as sin from baptism."(g)

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)

(b) War 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.

(f) L. ii. c. xxiii. s. 4.

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

(g) Henry V. act i. sec. 1.

(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 I. i. and 1. 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 l. iii.

A War ought, therefore, to combine the following characteristics:1. It must be declared or 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 civitas non est, nullum est."(c) According to an early but very sound definition offered by Albericus Géntilis, the pre[*68] cursor 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 into 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.

(f)Wanton devastation of the enemy's territory, wanton cruelty exercised towards his subjects, are, therefore, according to the [*69] 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

(c) Bynkershoek, Q. J. P., 1. i. c. i. (e) Vide ante, vol. i. p. 11.

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

(f) "Le droit des gens est naturellement fondé sur ce principe, que 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, 1. i. c. iii. Blackstone's Comm., b. iv. c. v.

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 eye. It is the more necessary to protest against such a doctrine as, from particular causes, such as the desire to maintain a particular theory, it has received some colour of sanction from the writings of eminent men.

Thus Mr. Hume, arguing "that public utility is the sole origin of justice, and that reflections on the beneficial consequences *of

this virtue are the sole foundation of its merit,"() supports his [*70]

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 authorizes it. The laws of War which have been described by many judicious moralists are all drawn from the fountain of justice and equity; and everything 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."()

Bynkershoek, rioting in the exercise of his vigorous but somewhat coarse intellect, expresses his opinion that everything is lawful against an enemy as such. "You make war," he says, "because you think that

(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.

66

(h) Horumque ut publici interpretes essent lege sanximus."-Ib

(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."

(2) 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.

your enemy, on account of the injury which he has done to you, has deserved 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,(m) poison [*71] him, or make a slave of him. A judge," he says, "who orders a convicted criminal to be slain by the axe of the executioner, though he be in chains and unarmed, is not, on that account, called unjust. If he were to loosen the bonds of the criminal and put a weapon into his hands, there would be a trial of courage and fortune, and not a punishment of a wrong-doer."

This illustration appears, by the incorrectness of its analogy, to furnish an answer to the doctrine which it is adduced to support.

In the case of the criminal, there is no doubt that he is a wrong-doer, and that his execution has been lawfully ordered by a competent authority.(n) But in the case of contending nations, it may, and we must hope generally does, happen that both parties believe that right is on their side." Atque hinc," says Grotius, "passim recepta est sententia, subditos quod attinet, dari bellum utrimque justum, id est injustitiâ vacans, quò illud pertinet."(o) But as States acknowledge no common tribunal upon earth, they are constrained, as the civilians say, litem suam facere, or, according to the common English phrase, "to take the law into their own hands," and *to consider success in the strife as the decision of God in their favour.

[*72]

To say that this is often a mistaken presumption, to object that this method of obtaining justice is unsatisfactory, uncertain, and attended with cruel injury to the innocent, is but to complain that we live in a world in which evil and good are mixed together, and which has the blemishes of imperfection ;(p) but this absence of a common tribunal, this want of a competent International Judge, this consequent necessity of war, does furnish in its admitted imperfection, as a mode of judicial procedure, a very good reason to all societies, and especially to all Christian societies, why a broad distinction should be made between the criminal convicted by the judge, and the enemy conquered by the enemy,

(m) 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 habeas, et ille forte non habet; denique cum liceat, ut uno verbo dicam, quomodocunque libuerit.”— Bynkershock, Q. J. P., l. 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.)

(n) "Quod inter duos populos de jure belli pronuntiare velle periculosum fuerat aliis populis, qui eâ ratione bello alieno implicarentur, sicut Massilienses in causâ Cæsaris et Pompeji dicebant, neque sui judicii neque suarum esse virium discernere utra pars justiorem haberet causam : deinde, quod etiam in bello justo vix satis cognosci potest ex indiciis externis, quis justus sit se tuendi, sua recuperandi, aut pœnas exigendi modus, ita ut omnino præstiterit hæc religioni bellantium exigenda relinquere, quam ad aliena arbitria vocare.”—Grotius, l. iii. c. iii. 4. (0) L. ii. c. xxvi. s. 4, p. 3.

(p)" As to War, if it be the means of wrong and violence, it is the sole means of justice among nations: nothing can banish it from the world. They who say otherwise, intending to impose upon us, do not impose upon themselves. But it is one of the greatest objects of human wisdom to mitigate those evils which we are unable to remove."-Burke, Letters on â Regicide Peace, viii. 181.

why it is not lawful to treat the honest warrior and the guilty murderer in one and the same manner; and if this be so, reason, morality, and religion, alike commend to the understanding and the conscience of nations, that cardinal principle of the law of war, to which reference has been already made, and by which it is decided that everything is not lawful against an enemy," but only those things which are essential to the vigorous prosecution and speedy termination of the war. ·(2)

The truth is that here again we may apply a remark made in an early part of this treatise with respect to the distinction between Right and Comity, namely, that the practice and *usage of nations was per[*73] petually transplanting the concessions of Comity into the domain of Right;(r) and so it has fared with the law of War since the time when Bynkershoek lived. As to mere historical precedents in such a matter, we are reminded of Bynkershoek's own indignant but just attack upon one who defended the fraudulent evasion of treaties. "Sed quia eam rem rationibus tueri non potest unicè tuetur scelerum exemplis."(s)

Those harsh and barbarous practices, that pushing of an extreme principle to its most odious extreme, has ceased to be among the legal usages of War. An abstinence from them, which Bynkershoek would have ascribed to the dictates of magnanimity (animo magnitudo) and not to the obligations of right (justitia,) is now enjoined by the recognized rule of warfare of civilized States. To put to death the unarmed and unresisting prisoner, to poison the enemy, to sell the captive into slavery,(t) to employ the arm of the assassin, are practices which the voice of Christendom has both reprobated and rendered illegal; for instance, Bynker. shoek says, that when the Roman Consuls wrote to King Pyrrhus "nobis non placet pretio aut præmio, aut dolis pugnare," and apprised him that an offer to poison him had been made to them, they did an act of extraordinary generosity; but during the last war with France, the British Government sent notice to the First Consul of a similar offer which had been made to them, and not to have done so would have been unworthy of any Christian State.

With respect to the use of fraud or stratagem, while it cannot be contended that such an instrument of War is illegal, the doctrine of Bynkershoek that every species of deceit, except perfidy, is lawful, is too broad a proposition; for instance, Prize Courts have held that though sailing under false *colours does not, firing under them does subject the vessel to the penaties of the illegal act.

[*74]

Perfidy is clearly illegal, and for the reason assigned by this author, namely, that the parties to the promise or stipulation, are, so far as that is concerned, divested of the character of enemies.

(9) I cite with pleasure the language of Bodinus, far sounder upon this point than Bynkershoek, however inferior to him as a jurist in other respects:—“At qui bello injusto captivos servare humanitatis esse putant, consimiliter faciunt, ut latrones, ac piratæ, qui se vitam dedisse jactant, quibus non ademerunt."-De Repub., 1. i. p. 34. (Parisiis: ed. 1586.)

(r) Vol. i. pp. 160-1.

(8) Quæst. Jur. Pub., 1. ii. c. ix. (t) "Of being taken by the insolent foe, And sold to slavery."-Othello, act i. sc. iii.