Chapter XXI (4)

112. Promises consist externally in words, really in the intention of the parties. But as the evidence of this intention must usually depend on words, we should adapt our general rules to their natural meaning. Common usage is to determine the interpretation of agreements, except where terms of a technical sense have been employed. But if the expressions will bear different senses, or if there is some apparent inconsistency in different clauses, it becomes necessary to collect the meaning conjecturally, from the nature of the subject, from the consequences of the proposed interpretation, and from its bearing on other parts of the agreement. This serves to exclude unreasonable and unfair constructions from the equivocal language of treaties, such as was usual in former times to a degree which the greater prudence of contracting parties, if not their better faith, has rendered impossible in modern Europe. Among other rules of interpretation, whether in private or public engagements, he lays down one, familiar to the jurists, but concerning the validity of which some have doubted, that things favourable, as they style them, or conferring a benefit, are to be construed largely; things odious, or onerous to one party, are not to be stretched beyond the letter. Our own law, as is well known, adopts this distinction between remedial and penal statutes; and it seems (wherever that which is favourable in one sense, is not odious in another) the most equitable principle in public conventions. The celebrated question, the cause, or, as Polybius more truly calls it, the pretext of the second Punic war, whether the terms of a treaty binding each party not to attack the allies of the other will comprehend those who had entered subsequently into alliance, seems, but rather on doubtful grounds, to be decided in the negative. Several other cases from history are agreeably introduced in this chapter.[394]

[394] C. 16.

113. It is often, he observes, important to ascertain, whether a treaty be personal or real, that is, whether it affect only the contracting sovereign or the state. The treaties of republics are always real or permanent, even if the form of government should become monarchical; but the converse is not true as to those of kings, which are to be interpreted according to the probable meaning, where there are no words of restraint or extension. A treaty subsists with a king, though he may be expelled by his subjects; nor is it any breach of faith to take up arms against an usurper with the lawful sovereign’s consent. This is not a doctrine which would now be endured.[395]

[395] C. 16, § 17.

114. Besides those rules of interpretation which depend on explaining the words of an engagement, there are others which must sometimes be employed to extend or limit the meaning beyond any natural construction. Thus, in the old law-case, a bequest, in the event of the testator’s posthumous son dying, was held valid, where none was born, and instances of this kind are continual in the books of jurisprudence. It is equally reasonable sometimes to restrain the terms of a promise, where they clearly appear to go beyond the design of the promiser, or where supervenient circumstances indicate an exception which he would infallibly have made. A few sections in this place seem, perhaps, more fit to have been inserted in the eleventh chapter.

|Obligation to repair injury.|

115. There is a natural obligation to make amends for injury to the natural rights of another, which is extended by means of the establishment of property and of civil society to all which the laws have accorded him.[396] Hence, a correlative right arises, but a right which is to be distinguished from fitness or merit. The jurists were accustomed to treat expletive justice, which consists in giving to every one what is strictly his own, separately from attributive justice, the equitable and right dispensation of all things according to desert. With the latter Grotius has nothing to do; nor is he to be charged with introducing the distinction of perfect and imperfect rights, if indeed those phrases are as objectionable as some have accounted them. In the far greater part of this chapter he considers the principles of this important province of natural law, the obligation to compensate damage, rather as it affects private persons than sovereign states. As, in most instances, this falls within the jurisdiction of civil tribunals, the rules laid down by Grotius may, to a hasty reader, seem rather intended as directory to the judge, than to the conscience of the offending party. This, however, is not by any means the case; he is here, as almost everywhere else, a master in morality and not in law. That he is not obsequiously following the Roman law will appear by his determining against the natural responsibility of the owner for injuries committed, without his fault, by a slave or a beast.[397] But sovereigns, he holds, are answerable for the piracies and robberies of their subjects when they are able to prevent them. This is the only case of national law which he discusses. But it is one of high importance, being, in fact, one of the ordinary causes of public hostility. This liability, however, does not exist where subjects, having obtained a lawful commission by letters of marque, become common pirates, and do not return home.

[396] C. 17.

[397] This is in the 8th title of the 4th book of the Institutes:
Si quadrupes pauperiem fecerit. Pauperies means damnum sine
injuria.

|Rights by law of nations.|

|Those of ambassadors.|

116. Thus far, the author begins in the eighteenth chapter, we have treated of rights founded on natural law, with some little mixture of the arbitrary law of nations. We come now to those which depend wholly on the latter. Such are the rights of ambassadors. We have now, therefore, to have recourse more to the usage of civilized people, than to theoretical principles. The practice of mankind has, in fact, been so much more uniform as to the privileges of ambassadors than other matters of national intercourse, that they early acquired the authority and denomination of public law. The obligation to receive ambassadors from other sovereign states, the respect due to them, their impunity in offences committed by their principals or by themselves, are not indeed wholly founded on custom, to the exclusion of the reason of the case, nor have the customs of mankind, even here, been so unlike themselves as to furnish no contradictory precedents; but they afford, perhaps, the best instance of a tacit agreement, distinguishable both from moral right and from positive convention, which is specifically denominated the law of nations. It may be mentioned that Grotius determines in favour of the absolute impunity of ambassadors, that is, their irresponsibility to the tribunals of the country where they reside, in the case of personal crimes, and even of conspiracy against the government. This, however, he founds altogether upon what he conceives to have been the prevailing usage of civilized states.[398]

[398] C. 18.

|Right of Sepulture.|

|Punishments.|

117. The next chapter, on the right of sepulture, appears more excursive than any other in the whole treatise. The right of sepulture can hardly become a public question, except in time of war, and as such it might have been shortly noticed in the third book. It supplies Grotius, however, with a brilliant prodigality of classical learning.[399] But the next is far more important. It is entitled On Punishments. The injuries done to us by others give rise to our right of compensation and to our right of punishment. We have to examine the latter with the more care, that many have fallen into mistakes from not duly apprehending the foundation and nature of punishment. Punishment is, as Grotius rather quaintly defines it. Malum passionis, quod infligitur ob malum actionis, evil inflicted on another for the evil which he has committed. It is not a part of attributive, and hardly of expletive justice, nor is it, in its primary design, proportioned to the guilt of the criminal, but to the magnitude of the crime. All men have naturally a right to punish crimes, except those who are themselves equally guilty; but though the criminal would have no ground to complain, the mere pleasure of revenge is not a sufficient motive to warrant us; there must be an useful end to render punishment legitimate. This end may be the advantage of the criminal himself, or of the injured party, or of mankind in general. The interest of the injured party here considered is not that of reparation, which, though it may be provided for in punishment, is no proper part of it, but security against similar offences of the guilty party or of others. All men may naturally seek this security by punishing the offender, and though it is expedient in civil society that this right should be transferred to the judge, it is not taken away, where recourse cannot be had to the law. Every man may even, by the law of nature, punish crimes by which he has sustained no injury; the public good of society requiring security against offenders, and rendering them common enemies.[400]

[399] C. 19.

[400] C. 20.

118. Grotius next proceeds to consider whether these rights of punishment are restrained by revelation, and concludes that a private Christian is not at liberty to punish any criminal, especially with death, for his own security or that of the public, but that the magistrate is expressly empowered by Scripture to employ the sword against malefactors. It is rather an excess of scrupulousness, that he holds it unbecoming to seek offices which give a jurisdiction in capital cases.[401]

[401] Id.

119. Many things essentially evil are not properly punishable by human laws. Such are thoughts and intentions, errors of frailty, or actions from which, though morally wrong, human society suffers no mischief; or the absence of such voluntary virtues as compassion and gratitude. Nor is it always necessary to inflict lawful punishment, many circumstances warranting its remission. The ground of punishment is the guilt of the offender, its motive is the advantage expected from it. No punishment should exceed what is deserved, but it may be diminished according to the prospect of utility, or according to palliating circumstances. But though punishments should bear proportion to offences, it does not follow that the criminal should suffer no more evil than he has occasioned, which would give him too easy a measure of retribution. The general tendency of all that Grotius has said in this chapter is remarkably indulgent and humane, beyond the practice or even the philosophy of his age.[402]

[402] C. 20.

120. War is commonly grounded upon the right of punishing injuries, so that the general principles upon which this right depends upon mankind, ought well to be understood before we can judge of so great a matter of national law. States, Grotius thinks, have a right, analogous to that of individuals out of society, to punish heinous offences against the law of nature or of nations, though not affecting themselves, or even any other independent community. But this is to be done very cautiously, and does not extend to violations of the positive divine law, or to any merely barbarous and irrational customs. Wars undertaken only on this score are commonly suspicious. But he goes on to determine that war may be justly waged against those who deny the being and providence of God, though not against idolaters, much less for the sake of compelling any nation to embrace Christianity, unless they persecute its professors, in which case they are justly liable to punishment. He pronounces strongly in this place against the persecution of heretics.[403]

[403] C. 20.

121. This is the longest chapter in the work of Grotius. Several of his positions, as the reader may probably have observed, would not bear a close scrutiny; the rights of individuals in a state of nature, of magistrates in civil society, and of independent communities, are not kept sufficiently distinct; the equivocal meaning of right, as it exists correlatively between two parties, and as it comprehends the general obligations of moral law, is not always guarded against. It is, notwithstanding these defects, a valuable commentary, regard being had to the time when it appeared, on the principles both of penal jurisprudence, and of the rights of war.

|Their responsibility.|

122. It has been a great problem, whether the liability to punishment can be transmitted from one person to another. This may be asked as to those who have been concerned in the crime, and those who have not. In the first case, they are liable as for their own offence, in having commanded, connived at, permitted, assisted, the actors in the crime before or after its perpetration. States are answerable for the delinquencies of their subjects when unpunished. They are also bound either to punish, or to deliver up, those who take refuge within their dominions from the justice of their own country. He seems, however, to admit afterwards, that they need only command such persons to quit the country. But they have a right to inquire into and inform themselves of the guilt alledged, the ancient privileges of suppliants being established for the sake of those who have been unjustly persecuted at home. The practice of modern Europe, he owns, has limited this right of demanding the delivery or punishment of refugees within narrow bounds. As to the punishment of those who have been wholly innocent of the offence, Grotius holds it universally unjust, but distinguishes it from indirect evil, which may often fall on the innocent. Thus, when the estate of a father is confiscated, his children suffer, but are not punished; since their succession was only a right contingent on his possession at his death.[404] It is a consequence from this principle, that a people, so far subject to its sovereign as to have had no control upon his actions, cannot justly incur punishment on account of them.

[404] C. 21. § 10. Hence it would follow, by the principle of
Grotius, that our law of forfeiture in high treason is just,
being part of the direct punishment of the guilty; but that of
attainder, or corruption of blood, is unjust, being an infliction
on the innocent alone. I incline to concur in this distinction,
and think it at least plausible, though it was seldom or never
taken in the discussions concerning those two laws. Confiscation
is no more unjust towards the posterity of an offender than fine,
from which of course it only differs in degree: and, on the other
hand, the law has as much right to exclude that posterity from
enjoying property at all, as from enjoying that which descends
from a third party through the blood, as we call it, of a
criminal ancestor.

|Insufficient causes of war.|

|Duty of avoiding it.|

123. After distinguishing the causes of war into pretexts and motives, and setting aside wars without any assignable justification as mere robberies, he mentions several pretexts which he deems insufficient, such as the aggrandisement of a neighbour; his construction of fortresses; the right of discovery, where there is already a possessor, however barbarous; the necessity of occupying more land. And here he denies, both to single men and to a people, the right of taking up arms in order to recover their liberty. He laughs at the pretended right of the emperor or of the pope to govern the world; and concludes with a singular warning against wars undertaken upon any pretended explanation of scriptural prophecies.[405] It will be anticipated from the scrupulousness of Grotius in all his casuistry, that he enjoins sovereigns to abstain from war in a doubtful cause, and to use all convenient methods of avoiding it by conference, arbitration, or even by lot. Single combat itself, as a mode of lot, he does not wholly reject. In answer to a question often put, Whether a war can be just on both sides? he replies that, in relation to the cause or subject, it cannot be so, since there cannot be two opposite rights; but since men may easily be deceived as to the real right, a war may be just on both sides with respect to the agents.[406] In another part of his work, he observes that resistance, even where the cause is not originally just, may become such by the excess of the other party.

[405] C. 22.

[406] C. 23.

|And expediency.|

|War for the sake of other subjects.|

124. The duty of avoiding war, even in a just cause, as long as possible, is rather part of moral virtue in a large sense, than of mere justice. But, besides the obligations imposed on us by humanity and by Christian love, it is often expedient for our own interests to avoid war. Of this, however, he says little, it being plainly a matter of civil prudence with which he has no concern.[407] Dismissing, therefore, the subject of this chapter, he comes to the justice of wars undertaken for the sake of others. Sovereigns, he conceives, are not bound to take up arms in defence of any one of their subjects, who may be unjustly treated. Hence, a state may abandon those whom it cannot protect without great loss to the rest; but whether an innocent subject may be delivered up to an enemy is a more debated question. Soto and Vasquez, casuists of great name, had denied this; Grotius however determines it affirmatively. This seems a remarkable exception from the general inflexibility of his adherence to the rule of right. For on what principle of strict justice can a people, any more than private persons, sacrifice, or put in jeopardy, the life of an innocent man? Grotius is influenced by the supposition that the subject ought voluntarily to surrender himself into the hands of the enemy for the public good: but no man forfeits his natural rights by refusing to perform an action not of strict social obligation.[408]

[407] C. 24.

[408] C. 25.

|Allies.|

|Strangers.|

125. Next to subjects are allies, whom the state has bound itself to succour; and friendly powers, though without alliance, may also be protected from unjust attack. This extends even to all mankind; though war in behalf of strangers is not obligatory. It is also lawful to deliver the subjects of others from extreme manifest oppression of their rulers; and though this has often been a mere pretext, we are not on that account to deny the justice of an honest interference. He even thinks the right of foreign powers, in such a case, more unequivocal than that of the oppressed people themselves. At the close of this chapter he protests strongly against those who serve in any cause for the mere sake of pay, and holds them worse than the common executioner, who puts none but criminals to death.[409]

[409] C. 25.

|None to serve in an unjust war.|

126. In the twenty-sixth and concluding chapter of this second book, Grotius investigates the lawfulness of bearing arms at the command of superiors and determines that subjects are indispensably bound not to serve in a war which they conceive to be clearly unjust. He even inclines, though admitting the prevailing opinion to be otherwise, to think, that in a doubtful cause, they should adhere to the general moral rule in case of doubt, and refuse their personal service. This would evidently be impracticable and ultimately subversive of political society. It, however, denotes the extreme scrupulosity of his mind. One might smile at another proof of this, where he determines that the hangman, before the performance of his duly, should satisfy himself as to the justice of the sentence.[410]

[410] C. 26.

|Rights in war.|

127. The rights of war, that is, of commencing hostility, have thus far been investigated with a comprehensiveness that has sometimes almost hidden the subject. We come now, in the third book, to rights in war. Whatever may be done in war, is permitted either by the law of nature or that of nations. Grotius begins with the first. The means morally, though not physically, necessary to attain a lawful end are themselves lawful; a proposition which he seems to understand relatively to the rights of others, not to the absolute moral quality of actions; distinctions which are apt to embarrass him. We have therefore a right to employ force against an enemy, though it may be the cause of suffering to innocent persons. The principles of natural law authorize us to prevent neutrals from furnishing an enemy with the supplies of war, or with anything else essential for his resistance to our just demands of redress, such as provisions in a state of siege. And it is remarkable that he refers this latter question to natural law, because he had not found any clear decision of it by the positive law of nations.[411]

[411] L. iii., c. 1.

|Use of deceit.|

128. In acting against an enemy force is the nature of war. But it may be inquired, whether deceit is not also a lawful means of success? The practice of nations and the authority of most writers seem to warrant it. Grotius dilates on different sorts of artifice, and after admitting the lawfulness of such as deceive by indications, comes to the questions of words equivocal or wholly false. This he first discusses on the general moral principle of veracity, more prolixly, and with more deference to authority, than would suit a modern reader; yet this basis is surely indispensable for the support of any decision in public casuistry. The right, however, of employing falsehood towards an enemy, which he generally admits, does not extend to promises, which are always to be kept, whether express or implied, especially when confirmed by oath. And more greatness of mind, as well as more Christian simplicity would be shown by abstaining wholly from falsehood in war. The law of nature does not permit us to tempt any one to do that which in him would be criminal, as to assassinate his sovereign, or to betray his trust. But we have a right to make use of his voluntary offers.[412]

[412] L. iii., c. 1.

|Rules and Customs of nations.|

|Reprisals.|

129. Grotius now proceeds from the consideration of natural law or justice to that of the general customs of mankind, in which, according, to him, the arbitrary law of nations consists. By this, in the first place, though naturally no one is answerable for another, it has been established that the property of every citizen is as it were mortgaged for the liabilities of the state to which he belongs. Hence, if justice is refused to us by the sovereign, we have a right to indemnification out of the property of his subjects. This is commonly called reprisals; and it is a right which every private person would enjoy, were it not for the civil laws of most countries, which compel him to obtain the authorisation of his own sovereign, or of some tribunal. By an analogous right the subjects of a foreign state have sometimes been seized in return for one of our own subjects unjustly detained by their government.[413]

[413] C. 2.

|Declarations of war.|

130. A regular war, by the law of nations, can only be waged between political communities. Wherever there is a semblance of civil justice and fixed law, such a community exists however violent may be its actions. But a body of pirates or robbers are not one. Absolute independence, however, is not required for the right of war. A formal declaration of war, though not necessary by the law of nature, has been rendered such by the usage of civilized nations. But it is required, even by the former, that we should demand reparation for an injury, before we seek redress by force. A declaration of war may be conditional or absolute; and it has been established as a ratification of regular hostilities, that they may not be confounded with the unwarranted acts of private men. No interval of time is required for their commencement after declaration.[414]

[414] C. 3.

|Rights by law of nations over enemies.|

131. All is lawful during war, in one sense of the word, which by the law and usage of nations is dispunishable. And this, in formal hostilities, is as much the right of one side as of the other. The subjects of our enemy, whether active on his side or not, become liable to these extreme rights of slaughter and pillage; but it seems that, according to the law of nations, strangers should be exempted from them, unless by remaining in the country they serve his cause. Women, children, and prisoners may be put to death; quarter or capitulation for life refused. On the other hand, if the law of nations is less strict in this respect than that of nature, it forbids some things which naturally might be allowable means of defence, as the poisoning an enemy, or the wells from which he is to drink. But the assassination of an enemy is not contrary to the law of nations, unless by means of traitors, and even this is held allowable against a rebel or robber, who are not protected by the rules of formal war. But the violation of women is contrary to the law of nations.[415] The rights of war with respect to enemies’ property are unlimited, without exception even of churches or sepulchral monuments, sparing always the bodies of the dead.[416]

[415] C. 4.

[416] C. 5.

132. By the law of nature, Grotius thinks that we acquire a property in as much of the spoil as is sufficient to indemnify us, and to punish the aggressor. But the law of nations carries this much farther, and gives an unlimited property in all that has been acquired by conquest, which mankind are bound to respect. This right commences as soon as the enemy has lost all chance of recovering his losses; which is in moveables, as soon as they are in a place within our sole power. The transfer of property in territories is not so speedy. The goods of neutrals are not thus transferred, when found in the cities or on board the vessels of an enemy. Whether the spoil belongs to the captors, or to their sovereign, is so disputed a question, that it can hardly be reckoned a part of that law of nations, or universal usage, with which Grotius is here concerned. He thinks, however, that what is taken in public enterprises appertains to the state; and that this has been the general practice of mankind. The civil laws of each people may modify this, and have frequently done so.[417]

[417] C. 6.

|Prisoners become slaves.|

133. Prisoners, by the law of nations, become slaves of the captor, and their posterity also. He may treat them as he pleases with impunity. This has been established by the custom of mankind, in order that the conqueror might be induced to spare the lives of the vanquished. Some theologians deny the slave, even when taken in an unjust war, the right of making his escape, from whom Grotius dissents. But he has not a right, in conscience, to resist the exercise of his master’s authority. This law of nations, as to the slavery of prisoners, as he admits, has not been universally received, and is now abolished in christian countries out of respect to religion.[418] But, strictly, as an individual may be reduced into slavery, so may a whole conquered people. It is of course at the discretion of the conqueror to remit a portion of his right, and to leave as much of their liberties and possessions untouched as he pleases.[419]

[418] C. 7.

[419] C. 8.

|Right of postliminium.|

134. The next chapter relates to the right of postliminium, one depending so much on the peculiar fictions of the Roman jurists, that it seems strange to discuss it as part of an universal law of nations at all. Nor does it properly belong to the rights of war, which are between belligerent parties. It is certainly consonant to natural justice, that a citizen returning from captivity should be fully restored to every privilege and all property that he had enjoyed at home. In modern Europe there is little to which the jus postliminii can even by analogy be applied. It has been determined, in courts of admiralty, that vessels recaptured after a short time do not revert to their owner. This chapter must be reckoned rather episodical.[420]

[420] C. 9.

|Moral limitation of rights in war.|

135. We have thus far looked only at the exterior right, accorded by the law of nations to all who wage regular hostilities in a just or unjust quarrel. This right is one of impunity alone, but before our own conscience, or the tribunal of moral approbation in mankind, many things hitherto spoken of as lawful must be condemned. In the first place, an unjust war renders all acts of force committed in its prosecution unjust, and binds the aggressor before God to reparation. Every one, general or soldier, is responsible in such cases for the wrong he has commanded or perpetrated. Nor can any one knowingly retain the property of another obtained by such a war, though he should come to the possession of it with good faith.[421] And as nothing can be done, consistently with moral justice in an unjust war, so, however legitimate our ground for hostilities may be, we are not at liberty to transgress the boundaries of equity and humanity. In this chapter, Grotius, after dilating with a charitable abundance of examples and authorities in favour of clemency in war, even towards those who have been most guilty in provoking it specially indicates women, old men, and children, as always to be spared, extending this also to all whose occupations are not military. Prisoners are not to be put to death, nor are towns to be refused terms of capitulation. He denies that the law of retaliation, or the necessity of striking terror, or the obstinate resistance of an enemy, dispense with the obligation of saving his life. Nothing but some personal crime can warrant the refusal of quarter or the death of a prisoner. Nor is it allowable to put hostages to death.[422]

[421] C. 10.

[422] C. 11.

|Moderation required as to spoil.|

136. All unnecessary devastation ought to be avoided, such as the destruction of trees, of houses, especially ornamental and public buildings, and of everything not serviceable in war, nor tending to prolong it, as pictures and statues. Temples and sepulchres are to be spared for the same or even stronger reasons. Though it is not the object of Grotius to lay down any political maxims, he cannot refrain in this place from pointing out several considerations of expediency, which should induce us to restrain the licence of arms within the limits of natural law.[423] There is no right by nature to more booty, strictly speaking, than is sufficient for our indemnity, wherein are included the expenses of the war. And the property of innocent persons, being subjects of our enemies, is only liable in failure of those who are primarily aggressors.[424]

[423] C. 12.

[424] C. 13.

|And as to prisoners.|

137. The persons of prisoners are only liable, in strict moral justice, so far as is required for satisfaction of our injury. The slavery into which they may be reduced ought not to extend farther than an obligation of perpetual servitude in return for maintenance. The power over slaves by the law of nature is far short of what the arbitrary law of nations permits, and does not give a right of exacting too severe labour, or of inflicting punishment beyond desert. The peculium, or private acquisitions of a slave by economy or donation, ought to be reckoned his property. Slaves, however, captured in a just war, though one in which they have had no concern, are not warranted in conscience to escape and recover their liberty. But the children of such slaves are not in servitude by the law of nature, except so far as they have been obliged to their master for subsistence in infancy. With respect to prisoners, the better course is to let them redeem themselves by a ransom, which ought to be moderate.[425]

[425] C. 14.

|Also in conquest.|

138. The acquisition of that sovereignty which was enjoyed by a conquered people, or by their rulers, is not only legitimate, so far as is warranted by the punishment they have deserved, or by the value of our own loss, but also so far as the necessity of securing ourselves extends. This last is what it is often unsafe to remit out of clemency. It is a part of moderation in victory to incorporate the conquered with our own citizens on equal terms, or to leave their independence on reasonable precautions for our own security. If this cannot be wholly conceded, their civil laws and municipal magistracies may be preserved, and, above all, the free exercise of their religion. The interests of conquerors are as much consulted, generally, as their reputation, by such lenient use of their advantages.[426]

[426] C. 15.

|And in restitution to right owners.|

139. It is consonant to natural justice that we should restore to the original owners all of which they have been despoiled in an unjust war, when it falls into our hands by a lawful conquest, without regard to the usual limits of postliminium. Thus, if an ambitious state comes to be stripped of its usurpations, this should be not for the benefit of the conqueror but of the ancient possessors. Length of time, however, will raise the presumption of abandonment.[427] Nothing should be taken in war from neutral states, except through necessity and with compensation. The most ordinary case is that of the passage of troops. The neutral is bound to strict impartiality in a war of doubtful justice.[428] But it seems to be the opinion of Grotius, that by the law of nature, every one, even a private man, may act in favour of the innocent party as far as the rights of war extend, except that he cannot appropriate to himself the possessions of the enemy; that right being one founded on indemnification. But civil and military laws have generally restrained this to such as obey the express order of their government.[429]

[427] C. 16.

[428] C. 17.

[429] C. 19.

|Promises to enemies and pirates.|

140. The licence of war is restrained either by the laws of nature and nations, which have been already discussed, or by particular engagement. The obligation of promises extends to enemies, who are still parts of the great society of mankind. Faith is to be kept even with tyrants, robbers, and pirates. He here again adverts to the case of a promise made under an unjust compulsion; and possibly his reasoning on the general principle is not quite put in the most satisfactory manner. It would now be argued that the violation of engagements towards the worst of mankind, who must be supposed to have some means of self-defence, on account of which we propose to treat with them, would produce a desperation among men in similar circumstances injurious to society. Or it might be urged, that men do not lose by their crimes a right to the performance of all engagements, especially when they have fulfilled their own share in them, but only of such as involve a positive injustice towards the other party. In this place he repeats his former doctrine, that the most invalid promise may be rendered binding by the addition of an oath. It follows from the general rule, that a prince is bound by his engagements to rebel subjects; above all, if they have had the precaution to exact his oath. And thus a change in the constitution of a monarchy may legitimately take place, and it may become mixed instead of absolute by the irrevocable concession of the sovereign. The rule, that promises made under an unjust compulsion are not obligatory, has no application in a public and regular war.[430] Barbeyrac remarks on this, that if a conqueror, like Alexander, subdues an unoffending people with no specious pretext at all, he does not perceive why they should be more bound in conscience to keep the promises of obedience they may have been compelled to enter into, than if he had been an ordinary bandit. And this remark shows us, that the celebrated problem in casuistry, as to the obligation of compulsory promises, has far more important consequences than the payment of a petty sum to a robber. In two cases, however, Grotius holds that we are dispensed from keeping an engagement towards an enemy. One of these is, when it has been conditional, and the other party has not fulfilled his part of the convention. This is of course obvious, and can only be open to questions as to the precedence of the condition. The other case is where we retain what is due to us by way of compensation, notwithstanding our promise. This is permissible in certain instances.[431]

[430] C. 19, § 11. There seems, as has been intimated
above, to be some inconsistency in the doctrine of Grotius with
respect to the general obligation of such promises, which he
maintains in the second book; and now, as far as I collect his
meaning, denies by implication.

[431] C. 19.

|Treaties concluded by competent authority.|

141. The obligation of treaties of peace depends on their being concluded by the authority which, according to the constitution of the state, is sovereign for this purpose. Kings who do not possess a patrimonial sovereignty cannot alienate any part of their dominions without the consent of the nation or its representatives; they must even have the consent of the city or province which is thus to be transferred. In patrimonial kingdoms, the sovereign may alienate the whole, but not always a part, at pleasure. He seems however to admit an ultimate right of sovereignty, or _dominium eminens_, by which all states may dispose of the property of their subjects, and consequently alienate it for the sake of a great advantage, but subject to the obligation of granting them an indemnity. He even holds that the community is naturally bound to indemnify private subjects for the losses they sustain in war, though this right or reparation may be taken away by civil laws. The right of alienation by a treaty of peace is only questionable between the sovereign and his subjects; foreign states may presume its validity in their own favour.[432]

[432] C. 20.

|Matters relating to them.|

142. Treaties of peace are generally founded on one of two principles: that the parties shall return to the condition wherein they were before the commencement of hostilities, or that they shall retain what they possess at their conclusion. The last is to be presumed in a case of doubtful interpretation. A treaty of peace extinguishes all public grounds of quarrel, whether known to exist or not, but does not put an end to the claims of private men subsisting before the war, the extinguishment of which is never to be presumed. The other rules of interpretation which he lays down are, as usual with him, derived rather from natural equity than the practice of mankind, though with no neglect or scorn of the latter. He maintains the right of giving an asylum to the banished, but not of receiving large bodies of men who abandon their country.[433]

[433] Id.

143. The decision of lot may be adopted in some cases, in order to avoid a war, wherein we have little chance of resisting an enemy. But that of single combat, according to Grotius’s opinion, though not repugnant to the law of nature, is incompatible with Christianity; unless in the case where a party, unjustly assailed, has no other means of defence. Arbitration by a neutral power is another method of settling differences, and in this we are bound to acquiesce. Wars may also be terminated by implicit submission or by capitulation. The rights this gives him have been already discussed. He concludes this chapter with a few observations upon hostages and pledges. With respect to the latter he holds that they may be reclaimed after any lapse of time, unless there is a presumption of tacit abandonment.[434]

[434] C. 20.

|Truces and conventions.|

144. A truce is an interval of war, and does not require a fresh declaration at its close. No act of hostility is lawful during its continuance; the infringement of this rule by either party gives the other a right to take up arms without delay. Safe conducts are to be construed liberally, rejecting every meaning of the words which does not reach their spirit. Thus a safe conduct to go to a place implies the right of returning unmolested. The ransom of prisoners ought to be favoured.[435] A state is bound by the conventions in war made by its officers, provided they are such as may reasonably be presumed to lie within their delegated authority, or such as they have a special commission to warrant, known to the other contracting party. A state is also bound by its tacit ratification in permitting the execution of any part of such a treaty, though in itself not obligatory, and also by availing itself of any advantage thereby. Grotius dwells afterwards on many distinctions relating to this subject, which, however, as far as they do not resolve themselves into the general principle, are to be considered on the ground of positive regulation.[436]

[435] C. 21.

[436] C. 22.

|Those of private persons.|

145. Private persons, whether bearing arms or not, are as much bound as their superiors by the engagements they contract with an enemy. This applies particularly to the parole of a prisoner. The engagement not to serve again, though it has been held null by some jurists, as contrary to our obligation towards our country, is valid. It has been a question, whether the state ought to compel its citizens to keep their word towards the enemy? The better opinion is that it should do so; and this has been the practice of the most civilized nations.[437] Those who put themselves under the protection of a state engage to do nothing hostile towards it. Hence, such actions as that of Zopyrus, who betrayed Babylon under the guise of a refugee, are not excusable. Several sorts of tacit engagements are established by the usage of nations, as that of raising a white flag in token of a desire to suspend arms. These are exceptions from the general rule which authorises deceit in war.[438] In the concluding chapter of the whole treatise Grotius briefly exhorts all states to preserve good faith and to seek peace at all times, upon the mild principles of Christianity.[439]

[437] C. 23.

[438] C. 24.

[439] C. 25.

|Objections to Grotius made by Paley unreasonable.|

146. If the reader has had the patience to make his way through the abstract of Grotius, De Jure Belli, that we have placed before him, he will be fully prepared to judge of the criticisms made upon this treatise by Paley and Dugald Stewart. “The writings of Grotius and Puffendorf,” says the former, “are of too forensic a cast, too much mixed up with civil law and with the jurisprudence of Germany, to answer precisely the design of a system of ethics, the direction of private consciences in the general conduct of human life.” But it was not the intention of Grotius (we are not at present concerned with Puffendorf) to furnish a system of ethics; nor did anyone ever hold forth his treatise in this light. Upon some most important branches of morality he has certainly dwelt so fully as to answer the purpose of “directing the private conscience in the conduct of life.” The great aim, however, of his inquiries was to ascertain the principles of natural right applicable to independent communities.

147. Paley, it must be owned, has a more specious ground of accusation in his next charge against Grotius for the profusion of classical quotations. “To anything more than ornament they can make no claim. To propose them as serious arguments, gravely to attempt to establish or fortify a moral duty by the testimony of a Greek or Roman poet, is to trifle with the reader, or rather take off his attention from all just principles in morals.”

|Reply of Mackintosh.|

148. A late eminent writer has answered this from the text of Grotius, but in more eloquent language than Grotius could have employed. “Another answer,” says Mackintosh, “is due to some of those who have criticised Grotius, and that answer might be given in the words of Grotius himself. He was not of such a stupid and servile cast of mind, as to quote the opinions of poets or orators, of historians and philosophers, as those of judges from whose decision there was no appeal. He quotes them, as he tells us himself, as witnesses, whose conspiring testimony, mightily strengthened and confirmed by their discordance on almost every other subject, is a conclusive proof of the unanimity of the whole human race on the great rules of duty and the fundamental principles of morals. On such matters, poets and orators are the most unexceptionable of all witnesses; for they address themselves to the general feelings and sympathies of mankind; they are neither warped by system, nor prevented by sophistry; they can attain none of their objects, they can neither please nor persuade, if they dwell on moral sentiments not in unison with those of their readers. No system of moral philosophy can surely disregard the general feelings of human nature, and the according judgment of all ages and nations. But where are these feelings and that judgment recorded and preserved? In those very writings which Grotius is gravely blamed for having quoted. The usages and laws of nations, the events of history, the opinions of philosophers, the sentiments of orators and poets, as well as the observation of common life are, in truth, the materials out of which the science of morality is formed; and those who neglect them are justly chargeable with a vain attempt to philosophise without regard to fact and experience, the sole foundation of all true philosophy.”[440]

[440] Mackintosh, Discourse on the Study of the Law of
Nature and Nations, p. 23 (edit. 1828).

149. The passage in Grotius which has suggested this noble defence will be found above. It will be seen on reference to it, that he proposes to quote the poets and orators cautiously, and rather as ornamental than authoritative supports of his argument. In no one instance, I believe, will he be found to “enforce a moral duty,” as Paley imagines, by their sanction. It is, nevertheless, to be fairly acknowledged, that he has sometimes gone a good deal farther than the rules of a pure taste allow in accumulating quotations from the poets, and that, in an age so impatient of prolixity as the last, this has stood much in the way of the general reader.

|Censures of Stewart.|

150. But these criticisms of Paley contain very trifling censure in comparison with the unbounded scorn poured on Grotius by Dugald Stewart, in his first Dissertation on the Progress of Philosophy. I have never read these pages of an author whom I had unfortunately not the opportunity of personally knowing, but whose researches have contributed so much to the delight and advantage of mankind, without pain and surprise. It would be too much to say that, in several parts of this Dissertation, by no means in the first class of Stewart’s writings, other proofs of precipitate judgment do not occur; but that he should have spoken of a work so distinguished by fame, and so effective, as he himself admits, over the public mind of Europe, in terms of unmingled depreciation, without having done more than glanced at some of its pages, is an extraordinary symptom of that tendency towards prejudices, hasty but inveterate, of which this eminent man seems to have been not a little susceptible. The attack made by Stewart on those who have taken the law of nature and nations as their theme, and especially on Grotius who stands forward in that list, is protracted for several pages, and it would be tedious to examine every sentence in succession. Were I to do so, it is not, in my opinion, an exaggeration to say that almost every successive sentence would lie open to criticism. But let us take the chief heads of accusation.

|Answer to them.|

151. “Grotius,” we are told, under the title, De Jure Belli et Pacis, “has aimed at a complete system of natural law. Condillac says, that he chose the title in order to excite a more general curiosity.” The total erroneousness of this passage must appear to every one who has seen what Grotius declares to have been his primary object. He chose the title because it came nearest to express that object--the ascertainment of laws binding on independent communities in their mutual relations, whether of war or peace. But as it was not possible to lay down any solid principles of international right till the notions of right, of sovereignty, of dominion over things and persons, of war itself, were clearly established, it became indispensable to build upon a more extensive basis than later writers on the law of nations, who found the labour performed to their hands, have thought necessary. All ethical philosophy, even in those parts which bear a near relation to jurisprudence and to international law, was in the age of Grotius a chaos of incoherent and arbitrary notions, brought in from various sources, from the ancient schools, from the scriptures, the fathers, the canons, the casuistical theologians, the rabbins, the jurists, as well as from the practice and sentiments of every civilised nation, past and present, the Jews, the Greeks, and Romans, the trading republics, the chivalrous kingdoms of modern Europe. If Grotius has not wholly disentangled himself from this bewildering maze, through which he painfully traces his way by the lights of reason and revelation, he has at least cleared up much, and put others still oftener in the right path, where he has not been able to follow it. Condillac, as here quoted by Stewart, has anticipated Paley’s charge against Grotius, of labouring to support his conclusions by the authority of others, and of producing a long string of quotations to prove the most indubitable propositions. In what degree this very exaggerated remark is true we have already seen. But it should be kept in mind, that neither the disposition of the age in which Grotius lived, nor the real necessity of illustrating every part of his inquiries by the precedent usages of mankind, would permit him to treat of moral philosophy as of the abstract theorems of geometry. If his erudition has sometimes obstructed or misled him, which perhaps has not so frequently happened as these critics assume, it is still true that a contemptuous ignorance of what has been done or has been taught, such as belonged to the school of Condillac and to that of Paley, does not very well qualify the moral philosopher for inquiry into the principles which are to regulate human nature.

152. “Among the different ideas,” Stewart observes, “which have been formed of natural jurisprudence, one of the most common, especially in the earlier systems, supposes its object to be--to lay down those rules of justice which would be binding on men living in a social state without any positive institutions; or, as it is frequently called by writers on this subject, living together in a state of nature. This idea of the province of jurisprudence seems to have been uppermost in the mind of Grotius in various parts of his treatise.” After some conjectures on the motives which led the early writers to take this view of national law, and admitting that the rules of justice are in every case precise and indispensable, and that their authority is altogether independent of that of the civil magistrate, he deems it “obviously absurd to spend much time in speculating about the principles of this natural law, as applicable to men before the institution of governments.” It may possibly be as absurd as he thinks it. But where has Grotius shown that this condition of natural society was uppermost in his thoughts? Of the state of nature, as it existed among individuals before the foundation of civil institutions, he says no more than was requisite in order to exhibit the origin of those rights which spring from property and government. But that he has, in some part especially of his second book, dwelt upon the rules of justice binding on men subsequent to the institution of property, but independently of positive laws, is most certain; nor is it possible for any one to do otherwise, who does not follow Hobbes in confounding moral with legal obligation; a theory to which Mr. Stewart was of all men the most averse.