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more than ever natural to man, both civilized and savage; which, as this expression intimates, is the grand business of life; for which all previous peace is but a period of preparation, and all subsequent repose but a breathing spell and inaction; to the carrying on of which a vast majority of civilized men are regularly educated; and concerning which statesmen and publicists have composed their finest dissertations. The great powers of refined Europe seem to be so bent on the perfection of this state of nature, that all their efforts are exerted to “Rend and deracinate
The unity and married calm of states;” who seem to have decreed a divorce à mensa, thoro et vinculis, and to have executed articles of perpetual strife and separation.
Whether civilized nations are bound to declare war, is another of the questions involved in the geneneral doctrine of the law of nations, which, however proper to be discussed in this chapter, and sometimes handled by statesmen, is not much to the purpose of our main inquiry. Perhaps Bynkershoek leaves it on its best footing, viz. that they eūght, but are not bound, to promulgate a solemn annunciation. If, like Idaeus and Talthybius, the saered heralds in the Iliad, or the fecial messengers of the Romans, modern ambassadours could not only declare, but suspend and terminate wars, this point would become interesting to us all. But as the proclamations and manifestos, which generally precede or attend modern hostilities, are intended to give popularity at home, not note of prepa
ration abroad, as many wars of late have stolen out in undeclared, unacknowledged trespasses, and some in clandestine wrongs, perpetrated with one hand and denied with the other; it will be as well not to embarrass the practical usages of states, with contests about these subsidiary incidents; but leaving them for the introductory chapters of civilians, to receive the declarations of war, as, in spite of our reasoning, they generally will come, from the adamantine throats of thundering artillery. - or
Without, therefore, any time spent upon this head, we proceed to others; merely taking occasion, in transitu, to point out a capital mistake of Mr. Bynkershoek's printer in this chapter, which is unsuspectingly adopted and propagated by Mr. Lee; and now, for the first time, rectified by Mr. Duponceau. In this second chapter Bynkershoek quotes, a passage from Dion Chrysostom, where he says that wars are more frequently waged without previous declarations; and in the following page, evidently by a misprint, quotes the same passage in an opposite sense. But Lee, perceiving the dilemma, and at a loss how to escape it, like an experienced antiquarian, calls in the Greeks and Romans to his aid, though Bynkershoek in this passage. makes no mention of them whatever; and asserts that they, as he understands from Chrysostom aforesaid, waged war for the most part by declaration—Lee, fl. 21. Duponceau, venturing to leave the Greeks and Romans to themselves, and yet desirous of explaining the seeming contradiction, inserts a note in which the whole difficulty is satisfactorily cleared up.”
* In the original, this passage from Dion Chrysostom is quoted so as to mean, that war is most frequently DEc LARED (bella indicta ori to raisov, ut plurimūm) but from the context it appears evidently to have been an errour of the press. The words of Chrysostom are: réxiaoi or iri re axis-ow 'AKHPTKTOI yi, voviral. Wars are most frequently, made without a publick declaration, and so our author translates them very j
above, page 7.
CHAPTER. III.-IV. The period when Bynkershoek wrote may seem to be too modern for supporting the right to destroy or enslave prisoners of war. Yet when we reflect on what are termed the rights of war, however shocking the principle may appear, must it not be conceded as one of the incidents of that summum jus, which, as the translator properly observes, is very near akin to barbarism : The custom of exchanging prisoners has so generally superseded those of enslaving and destroying them, and so many offices of civility and reciprocal kindness have been engrafted on the duties, so called, of war, that we have brought ourselves almost to believe, that an enemy has no right over prisoners beyond that of detention; an opinion undoubtedly unfounded, or the blood of André would rest on the head of Washington, and all the examples of retallating severity, which every war visits on the conflicting parties, would be nothing better than so many murders. Js not this seeming ameliora ion calculated to perpetuate bloodshed, by rendering war a science, full to be sure of peril and stratagem, but nevertheless contained within certain ascertained bounds of wrong-doing, a captivating profession to the young and ambitious, and the surest means of a bad minister's support 2 Would it not contribute more to the infrequency, and, at least comparative, prevention of wars, if their rights were exercised with less mitigated rigour; and warring nations made to feel, in their direst effects, the pressure and privations of that state of barbarism, of Savage nature, brute force, and suspended civilisation, which, after all that can be said, done, or writ
ten, war is and ever will be 2 As regards property there is no dispute. Therefore, in the fourth chapter, the author, taking it for granted that all things by conquest are converted to the conquer
or's use, passes on, almost without noticing this principle, to the subordinate inquiry that follows. A quarrel between Louvois and Le Notre, respecting one of the windows in the palace of Versailles, which Louis the fourteenth found it necessary to quell, by reproving the former, instigated that mortified great minister of war to plunge his master into the endless hostilities that followed, by way of amusing his mind and securing his own place. And no one contested the right to ravage and lay waste the Palatinate, however the unnecessary cruelty of that ferocious stroke of Louvois’ policy may be deprecated or detested. Henry the fifth, of England, during the battle of Agincourt, did not hesitate to put all his prisoners to death, on the plea of necessity; nor do we doubt his right, though we shudder at the deed. Let us not be understood to recommend the poisoning of fountains, or massacre of captives. But we do venture an opinion, in conformity with the text before us, that nations, before they rush upon a state of war, should be prepared to endure its essential hardships. And we do wish to be understood as reprobating those corrupt relaxations which have obtained lately between the great European belligerents, by which the rigours of war are frittered away as between themselves, and their whole edge and operation, turned upon neutrals. We are not anxious, at this time of day, to contest, ač ovo, the rights of war; or to assert that neutrals acquire immunities not theirs in time of peace. But we must reprobate all corruptions, which tend to make a quasi peace between the belligerents, and a quasi war between them and neutrals; in which, like a quarrelling man and wife, the belligerents coalesce to destroy the neutrel who interferes with his impartial assistance. It will be perceived that, in advance of its proper place, we are alluding to what is called the license trade, that has prevailed lately to so enormous an amount between France and England, notwithstanding the flagration of war; that monstrous anomaly in the usages of nations and laws of war, which prohibits and confiscates a neutral for attempting what a belligerent may perpetrate with impunity, and without disguise; that best and boasted issue from the law of gleaning, the only one we know of, in which the supreme wants of necessity are allowed to overcome the institutions of society. Let empires make peace when they can no longer bear the weight of war; or, at all events, let not the indefeasable and primary rights of neutrality fall a victim to the subsequent and doubtful aggressions of war, unless the latter are maintained with such rigorous exactitude as to entitle belligerents to the rigorous exercise of their rights on neutrals. Let not the 'former claim both the bone and the flesh. To such, if any there be, who advocate the right, as well as the policy of the late British orders, and French decrees, we recommend what Bynkershoek, with an independence of sentiment, as laudabie, as his arguments are irresistable, urges against the Dutch decree of the 27th November, 1666, and the French decree of the 17th September, 1672, which unnatural ebullitions of hostile anger he unhesitatingly disapproves, though they originated with his own government, because without actual enforcement they were illegal and void; because they fell alike on the innocent and offensive: for, says this great and just publicist, “ RETALIA rion is only TO BE EXERCISED ON HIM W HO HAS commitor ED THE INJURY, AND NOT ON A common FRIEND; AND HE, who has bone No INJURY, oug Hor Noor, IN Justic E, To suflent, breach of the rights of war, formerly did not presume to complain, when men, of flesh and blood, and equipped with arms, were transported to fight in the array of one belligerent against another. Neutra-. hity had not even a name. Languages had no term to express it; not because it did not exist, but because its immunities were so very latitudinary, as to be almost coextensive with the superfluities, which a na-. tion at peace could furnish to one at . war.
would be absurd to suppose, that any people would venture with their persons and goods to places, where they were sure to have the one imprisoned and the other confiscated:
wherefore in declarations of war,
and proclamations which follow them, mutual commerce is generally forbid.” This retaliation, of all measures of state necessity, is that to which the poet’s description of a monster, as applied by Bynkershoek to state necessity in general, most emphatically belongs, “Monstrum horrendum, informe, ingens, cui lumen ademptum.” In his 5th, 6th, 7th, and 8th chapters, Bynkershoek treats with his usual talent and impartiality, of recaptures, of hostile territorial occupancy, of confiscations, and of hostilities in neutral ports or territories: and the translation proceeds with the same spirit and accuracy. But we pass rapidly over these divisions; to come to those of higher interest, which follow, wherein the rights of neutrality, as clashing with those of war, contraband, and blockade, are investigated. The fearful improvements of late years in the arts of war and destruction, which have distinguished the old world, both by sea and land; and the no less prodigious growth of commercial prosperity and maritime enterprise, proceeding from the new, have forced the conflicting doctrines of both war and neutrality into so many new views, that it is matter of curious speculation to examine the pure but little fountains, from which they rose, and from whence they have now spread over the whole face of the globe. From the author before us, one of the most copious and unadulterated of these sources, we perceive that the time is not very distant when sol
“I call neutrals [non hostes"] those who take part with neither of the belligerent powers, and who are not bound to either by any alliance. If they are so bound, they are no longer neutrals, but allies. Grotius has called them middle men [medii) l. 3. De J. B. ac P. c. 9. Of these it is asked what is lawful for them to do or not do between two belligerent parties Every thing, perhaps it will be said, that it was lawful for them to do or to omit doing when they were all at peace; for the state of war does not seem to extend farther than to those who are at war with each other. Does reason require, will you say, that the enemies of our friends should be considered as our own enemies 2 If not, why shall not our friends carry to their friends, though they be our enemies, those things which they were in the habit of carrying to them before ? nay, arms, men, and every thing else? It militates, indeed, against our own advantage, but we are not considering what is advantageous, but what is reasonable. The injury suffered is alone the cause of the war, and it is evident that that injury has no effect beyond the person of him who has suffered it, except, that if he is a prince, it extends also to all his subjects, but not to those who are not subject to his dominion. Whence it must follow, that my friend’s enemy is not my enemy, but that the friendship between us subsists precisely as it did before the war.
“We find that the counsellors of the
states-general adopted this doctrine, when on the od of March 1640, the states issued an edict on their report, declaring that agreeably to ancient custom and to the , law of neutrality, it was lawful for neutrals to fight for us or for our enemies as they might think proper And when the Spaniards, on the 30th of March 1639, issued an edict declaring that if any of the people of Liege had enlisted in the service of the states-general, they should return within one month, having first taken an oath that they would no more fight against Spain or the house of Austria, otherwise, every pardon would be denied to them, a similar edict was made in retaliation on the 3d of March 1640, in the name of the states-general, of which I remember that it was to be in force as long as that of Spain, which, in the said edict of the 3d of March 1640, was represented as an innovation, entirely devoid of reason, and stigmatized in these words: “an unreasonable edict—such novelty and unreasonableness—so long as the Spaniards shall continue in force their unreasonable edict, &c.” Such also was the opinion of certain Dutch citizens, expressed in the states of Holland, on the 26th of February 1684, when they urged the sending of auxiliary troops to the Spaniards, to be employed against the French, which they said could be done without injury to the peace then subsisting with France: Salvá pace et amicitid cum Francis.
“And indeed, what I have just now said is not only conformable to reason, but to the usage admitted by almost all mations. For although it be lawful for us to carry on trade with the enemies of our friends, usage has so ordered it, as I shall show more at large in the next chapter, that we should not assist either of them with those things by which the war against our friends may be carried on. It is therefore unlawful to carry to either party those things which are necessary. in war, such as cannon, arms, and what is most essentially useful, soldiers; nay, soldiers are positively excepted by the treaties of various nations, and sometimes also materials for building ships, which might be used against our friends, have been cycepted. Provisions likewise are
* It is remarkable that there are no words in the Latin language which o answer to the English expressions, neutral, neutrality; for neutralis, neutralitas, which
are used by some modern writers, are barbarisms, not to be met with in any classical author. These make use of the words annici, medii, pacati, which are very inadequate to express what we understad by neutrals, and they have no substantive whatever" (that we know of) for neutrality. We shall not here inquire into the cause of this deficiency. Such an inquiry wood carry us too far, and does not comport with the object of this work. - -
often excepted, when the enemies are besieged by our friends, or are otherwise pressed by famine. The law has very properly forbidden our supplying the enemy with any of those things; for it would be, as it were, making war against our friends. Therefore if we consider the belligerents merely as our friends, we may lawfully carry on trade with them, and carry to them any kind of merchandise, but if we consider them as the enemies of our friends, those merchandises must be excepted, by means of which they might injure those friends; and this reason is stronger than the former; for in whatever manner we may assist one against the other, we do interfere in the war, which is not consistent with the duties of neutrality. From these reasons may be seen which had the most justice on its side, the edict of the Spaniards of the 30th of March 1639, or that of the states-general of the 3d of March, 1640, of both of which I have spoken above.”
As respects contraband, Bynkershoek is very explicit and very reasonable. In truth, it is not his least merit, that, without seeming to concede any thing to either, party, he mostly recommends that medium, which ought to be unobjectionable to both.
“It is denied that the subject of an ally or confederate, trading with a common enemy, may be punished by us, or his property condemned; because it is said that every one is bound only to obey the laws of his own sovereign, and therefore that an ally can have no control over him. But reason, usage, and publick utility, are opposed to that decision.”
But the belligerent assertion, which by its enormity, has swallowcd up all others, is that of blockade;
a principle, in itself so plain, that two unprejudiced minds can hardly differ about it. Yet it is the constructive extension of this principle, so clear when confined to its legitimate bounds, so clearly a wrong when exceeding them, that has unhinged the established laws and usages of nations and of ages. Bynkershoek, in the main, supports those sentiments, that are most prevalent on this point, for the theory is too plain for a cavil.
“I have said in a former chapter, that by the usage of nations, and according to the principles of natural reason, it is not lawful to carry any thing to places that are blockaded or besieged. Grotius is of the same opinion; for he reprobates the carrying any thing to blockaded or besieged places, “if it should impede the execution of the belligerent’s lawful designs; and if the carriers might have known of the siege or blockade, as in the case of a town actually invested or a port closely blockaded, and when a surrender or a peace is already expected to take place.” Indeed, it is sufficient that there be a siege or blockade to make it unlawful to carry any thing, whether contraband or not, to a place thus circumstanced; for those who are within may be compelled to surrender, not merely by the direct application of force, but also by the want of provisions and other necessaries. If, therefore, it should be lawful to carry to them what they are in need of, the belligerent might thereby be compelled to raise the siege or blockade, which would be doing him an injury, and therefore would be unjust. And because it cannot be known what articles the besieged may want, the law forbids, in general terms, carrying any thing to them; otherwise disputses and altercations would arise to which there would be no end.”
* Si juris mei erecutionem rerum subvectio impedierit, idoue scire potuerit qui adverit, u’r stoppidum obsessurn tenebam, si portus clausos, & jam deditio aut par expectabatur, tenebitur ille mihi de damno cuspá dato, ut qui debitorem carceri eremit, aut fugam ejus in mean fraudem instruxit; si damnum nondim dederit, sed dare voluerit, jus erit rerum retentione eum cogere ut de futuro caveat, obsidibus, pignoribus, aut alio modo. If he (the carrier) should by his supplies impede the execution of any lawful designs; as if I kept a town besieged or a port closely blockaded, and I already expected a surrender or a peace; he will be liable to me for the damage occasioned by his fault, in like manner as he who should make my debtor escape out of prison, or aid him in his flight to defraud me of my right; and if he has not occasioned to me any actual damage, but has been willing to do it, in that case, it will be lawful by the detention of his goods, to compel him to give security for the future, by hostages, pledges, or in some other way. Grot. de J. B. ac, P. l. 3. c. 1. § 5, n. 3.