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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 ought, but are not bound, to promulgate a solemn annunciation. If, like Idæus and Talthybius, the sacred 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 in teresting 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.
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, p. 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 DECLARED (bella indicta ini To sov, ut plurimùm) but from the context it appears evidently to have been an errour of the press. The words of Chrysostom are: πόλεμοι ὡς ἐπὶ τὸ αλεῖςον ̓ΑΚΗΡΥΚΤΟΙ γίγνονται. Wars are most frequently made WITHOUT a publick declaration, and so our author translates them very correctly above, page 7.
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 Andrè 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. Is 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 minis ter's support? 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 written, war is and ever will be?
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, ab 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 beltigerent 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 laudable, 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 unhe sitatingly 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, "RETALIATION IS ONLY ΤΟ BE EXERCISED ON HIM WHO HAS COMMITTED THE INJURY, AND NOT ON A COMMON FRIEND; AND HE, WHO HAS DONE NO INJURY, OUGHT NOT, IN JUSTICE, TO SUF
FER." Even Mr. Lee, not foreseeing the juncture that has arisen, honestly declares that "commerce, by the very nature of war, ceases be tween powers at open emnity; for it
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 gencrally 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 chap. ters, 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 soldiers were not comprehended in the list of contraband, that has lately swelled to such an enormous roll; and that those same powers, which now inhibit the shipment of an ounce of lead or a coil of cordage, as a vio-'
states-general adopted this doctrine, when
an unrea• ·
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 be done without injury to the peace then
subsisting with France: Salvá pace et amicitiá cum Francis.
fent. 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. Neutrality had not even a name. Language had no term to express it; not be cause it did not exist, but because its immunities were so very latitudinary, as to be almost coextensive with the superfluities, which a nation at peace could furnish to one at
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 bound, they are no longer neutrals, but allies. Grotius has called them middle men [medii] 1. 3. De J. B. ac P. c. 9.. Of these it is asked what is lawful for
our friends should be considered as our own enemies? 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
"We find that the counsellors of the
"And indeed, what I have just now said is not only conformable to reason, but to the usage admitted by almost all nations. 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 excepted. Provisions likewise are
* It is remarkable that there are no words in the Latin language which precisely 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 amici, medii, pacati, which are very inadequate to express what we understand 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 would carry us too far, and does not comport with the object of this work.
often excepted, when the enemies are be. a principle, in itself so plain, that sieged by our friends, or are otherwise
two unprejudiced minds can hardly pressed by famine. The law has very pro- differ about it. Yet it is the construcperly forbidden our supplying the enemy tive extension of this principle, so with any of those things; for it would be, as it were, making war against our friends. clear when confined to its legitimate Therefore if we consider the belligerents bounds, so clearly a wrong when exmerely as our friends, we may lawfully ceeding them, that has unhinged the carry on trade with them, and carry to established laws and usages of nathem any kind of merchandise, but if we
tion's and of ages. Bynkershoek, in consider them as the enemies of our friends, those merchandises must be ex.
the main, supports those sentiments, cepted, by means of which they might that are most prevalent on this injure those friends; and this reason is point, for the theory is too plain for stronger than the former; for in whatever manner we may assist one against the other, we do interfere in the war, which “ I have said in a former chapter, that is not consistent with the duties of neu. by the usage of nations, and according to trality. From these reasons may be seen the principles of natural reason, it is not which had the most justice on its side, the lawful to carry any thing to places that edict of the Spaniards of the 30th of are blockaded or besieged. Grotius is of March 1639, or that of the states-general the same opinion; for he reprobates the of the 3d of March, 1640, of both of carrying any thing to blockaded or bewbich I have spoken above."
sieged places, if it should impede the
execution of the belligerent's lawful deAs respects contraband, Bynker- signs; and if the carriers might have shoek is very explicit and very rea
known of the siege or blockade, as in the sonable. In truth, it is not his least
case of a town actually invested or a port
closely blockaded, and when a surrender merit, that, without seeming to con
or a peace is already expected to take cede any thing to either party, he place.'* Indeed, it is sufficient that there mostly recommends that medium, be a siege or blockade to make it unlawful which ought to be unobjectionable to carry any thing, whether contraband to both.
or not, to a place thus circumstanced,
for those who are within may be compel" It is denied that the subject of an
led to surrender, not merely by the direct ally or confederate, trading with a com.
application of force, but also by the want nion enemy, may be punished by us, or
of provisions and other necessaries. If, his property condemned; because it is therefore, it should be lawful to carry to said that every one is bound only to obey them what they are in need of, the bellithe laws of his own sovereign, and there. gerent might thereby be compelled to fore that an ally can have no control
raise the siege or blockade, which would over him. But reason, usage, and publick would be unjust. And because it cannot
be doing him an injury, and therefore utility, are opposed to that decision."
be known what articles the besieged may But the belligerent assertion, want, the law forbids, in general terms, which by its enormity, has swallow- disputses and altercations would arise to
carrying any thing to them; otherwise ed up all others, is that of blockade; which there would be no end."
* Si juris mei executionem rerum subvectio impedierit, idque scire potuerit qui advexit, UT SI oppidum obsessum tenebam, si portus clausos, & jam deditio aut pax expectabatur, tenebitur ille mihi de damno culpâ dato, ut qui debitorem carceri exeinit, aut fugam ejus in meam fraudem instruxit; si dumnum nondùm 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. 1. 3. c. 1. $ 5. n. 3.