PART II. perfonal relation and numbers, however unknown to one another, CHAP.IV. fuffer themfelves to be formed into nations and empires of the greatest extent. SECT. IV. But, with respect to the objects of our present diffcuffion, any Jeparate company or fociety of men acting under a common direction, may be termed a nation: For any plurality of men so united, in the language of lawyers, is an artificial perfon, having power to act, and rights to defend. In the intercourse of separate nations there being no government or common magiftrate to whom they are subject, their cafe is, or may be nearly the fame with that which was supposed in a preceding section under the relation of parties strangers and unconnected. They are fubject to the law of nature alone, however it may be modified by fpecial conventions, and the law of nature for this reafon is alfo termed the law of nations. In their differences or difagreements they may appeal to the judgement of neutral powers; but if a difference is not otherwise removed, they may have recourse to war and the decifion of arms. The law of nations, which proceeds upon the fuppofition of peace when their is no exifting offence, proceeds upon the fuppofition of war when differences arise that cannot be otherwise reconciled; and is therefore, relatively to fuch occafions, termed alfo the law of peace and of war. The last of these titles is that under which the learned Grotius has treated of the law of nature; and perfons who have recourfe to this author will have occafion to select from his redundancy what is necessary rather than to feek for additional information on the fubject. Poffeffed of the juft principle of compulfory law, he 1 SECT. IV. he has applied it in a most ample detail, but fo intermixed with PART II. CHAP. IV. quotations from the custom and practice of different ages, with confiderations of duty, as well as right; that his work becomes a fyftem of ethics, and the history of opinions and customs, rather than a simple deduction and application of the principles of compulfory law. His quotations, indeed, are interefting, fo far as we are concerned to know what men and nations have thought and practised, on the subject of their mutual obligations and rights; although their opinions are not of fufficient authority in establishing the principles, or in directing the applications of juf tice. The most admired nations of antiquity were erroneous in their doctrines, and unfortunate in their practices relating to this important fubject. In war, the hoftilities they practised were often unneceffarily deftructive; and the fervitude to which they deftined their captives was altogether unfounded on any principle of juftice. So that, what we have to learn from the example they have fet in these particulars, is rather what we ought to avoid, than what we may imitate or quote as authority in decifions of natural law. We are, in this refpect, certainly more happy in modern times. War is made with little national animofity, and battles are fought without any perfonal exafperation of those who are engaged: So that parties' are, almost in the very heat of a conteft, ready to listen to the dictates of humanity or reafon + and there is no branch of practical justice, which we may recommend with more hopes of fuccefs, than that which reftrains nations at war, from unneceffary feverities against one another. The PART. II. CHAP. IV. The artificial perfons, of whom we are now to treat, confiderSECT. IV. ed internally, or in refpect to their constituent members, confift of fellow citizens, magiftrates, and fubjects: Confidered externally, or in respect of one nation to another, they have their separate rights, whether original or acquired; may avail themselves of fuch rights; and guard them, by fuch means as are in their power, against any fpecies of infringement or wrong. Among the rights of nations, acquired or adventitious, may be reckoned the ftipulations of treaty, or the conditions of acknowledged cuftom. These several articles of right, every nation lies under an obligation to observe, respecting its neighbour, and is entitled to maintain refpecting itself. In their difputes, they may have recourfe to perfuafion or reafon; but, if reafon fhould fail, their final refort is to ftratagem or force. Such is the state of war between nations; a state in which it is allowed, that former conventions ceafe to be binding, and that a nation aggrieved may avail itself of every means in its power to obtain redress; but, if the grounds of war be lawful, on the fide of the one party, they must be unlawful on the part of the other; and all that we say, concerning the rights of war, in the application of force, is true only upon the supposition that the grounds of the war itself are juft: Infomuch that, in stating the maxims of law, on this fubject, we endeavour to exprefs only the rights of those who are entitled to plead the justice of their cause. Wars may originate in rapacity, emulation, or malice, in error or misapprehenfion of right; they may be of indefinite continuance, or even form the ordinary state of contiguous nations. The fact CHAP. IV. in these refpects, is matter of hiftory, and admits of indefinite PART II. variations; but we are, in this place, to confider merely upon SECT. IV. what fuppofition the act of hoftility, in any one nation, may be juft; to what extent lawful hoftilities may be carried, or within what limits they are circumfcribed, even to nations who are entitled to use them in the highest degree: But, before we proceed to this principal object of difquifition, it is proper to confider queftions which relate particularly to the cafe of nations, as they are, in their manner of acting or fuffering, diftinguifhed from fingle men. As the perfons of whom we are now to treat, include a plurality of individuals, having each a principle of will and activity centered in himself, as well as a common caufe, in which the members compofing the community may jointly act, or fuffer in a body; two principal questions may arife concerning them: First, what actions, proceeding from the members of a community, are to be confidered as acts of the community itself? And, fecondly, In whose perfon may the community be fuppofed to receive an injury; and from whom, in case of an injury received, may the community exact repation? To the first question, we may answer, That the fovereign of the state, of whatever defcription, whether a monarch or national affembly, is ever fuppofed to act for the community, and his actions are ever chargeable as actions of that body of which he is the head. In his title of fovereignty is implied a general fubftitution of his acts, for acts of that nation, of which the fupreme direction is committed to him. To this we may add, that the action of any individual, if employed by the fovereign, or commiffioned VOL. II. PP PART II. fioned by the public fo to act, or if generally understood to act for his country, will alfo involve, as a party in all his proceedings, the community to which he belongs. CHAP. IV. But, as private citizens may offend against the peace of their own country, as well as against that of a foreign nation, ftates are not answerable for the offence of particular fubjects, farther than they previously authorise their conduct, or avow and protect the offender after the fact. Thus, pirates committing depredations on the high feas, are confidered as private criminals, and amenable to the penal laws of their own country, whilft letters of marque, or private ships of war, authorised by public commission, or publicly received into port with their prizes, and protected in the ufe of them, are juftly confidered as involving their country in the hoftilities they have committed, whether unlawful or juftly provoked. To the fecond queftion, we may answer, That a nation may receive an injury in the perfon or effects of any citizen: That, in the cafe of wrongs fo received, the injured party may exact reparation, and make reprifals on the perfon or effects of any fubject or member of the injurious nation: And, in refpect to both queftions, it is evident, that as a nation may be chargeable with a wrong committed by any of its members, whether authorised or merely protected, fo the injurious nation may be coerced or forced to make reparation by means that immediately affect the private intereft of any of its citizens, as well as by means that affect the community at large; in fomuch, that the law of defence, in its application to the cafe of nations, will bear, that a community injured, whether in any of its public interefts, or in the perfon 7 |