PART II.

SECT. V.

Stratagem, implying fome fpecies of deception, is more the reCHAP. IV. fort of an enemy than of a friend. It may be employed in mifleading the injurious from his aim, or in obtaining from him conceffions which he might not otherwise be willing to make.

On this fubject, we have already confidered the fcruples that may arise respecting the ufe of deception, and the preference which the brave may give to the ufe of open force, even in obtaining redress of their wrongs; but we did not find, that the injurious can take any just exception to the use of stratagem, or complain that he is deceived when the effect is merely to counteract the wrong he commits. There is, however, one form in which deception is reprobated by mankind in general, even in the midst of hoftilities, and under the utmost animofity of a national conteft.

Although it be allowed to mislead an enemy by falfe appearances, and even by falfe informations, it is not allowed to enter into illufive treaties, or to ftipulate articles for the fake of an advantage to be gained by a fubfequent breach of faith.

It is allowed that hoftilities cancel the obligation of preceding conventions, but not the obligation of treaties that may be entered into after commencement of a war. Hence the facred regard that is paid to cartels, refpecting the treatment or exchange of prifoners, the capitulations or treaties of furrender which take place in the midst of military operations, the quarter granted to an enemy who lays down his arms, or the freedom that is given to a prifoner, upon his parole of honour not to ferve until he is fairly exchanged.

PART II.
CHAP. IV.

In all these instances, the faith plighted, though even to an enemy, and under the operation of force, is held, by the general con- SECT. V. fent of all civilized nations, to be facred in the highest degree. The obligation, though poffibly not founded in the principle of ftrict law, certainly refts on a principle of humanity, abfolutely necessary to the welfare of mankind, as without it, the calamities of war, once begun, could scarcely ever be brought to an end. Peace itself rests upon the faith of a treaty concluded, while nations were yet at war; and, if it were admitted that fuch treaties could be entered into, and concluded merely to deceive an enemy, and draw him into a fnare, it is evident, that the only means left to mankind, by which to stop the iffues of blood, without the final extermination of an enemy, would be cut off, and two nations at war would be obliged to persist in hostilities to the utter deftruction of one or the other.

On this ground, breach of faith, even during war, is reprobated among civilized nations; and indeed, the advantage that might be derived from it, in any particular inftance, would be more than counterbalanced by the general diftruft which the faithlefs would incur, in cafes where it might be their intereft to have credit given to their declarations or profeffions.

Force is the ordinary and ultimate refort of nations who cannot fettle their differences upon amicable terms. But, even in this laft refort, the law of nature, we have obferved, directs a choice to be made of fuch means, as being effectual, are leaft hurtful to the parties against whom they are employed. The effect to be aimed at is the redrefs of a wrong; and any harm done, even to

an enemy, beyond what is neceffary to this effect, we have obferved, is itself a wrong, and by the law of nature forbidden.

In applying this maxim to the cafe of nations at war, or in determining what may be lawful in the choice of hostilities, we are to confider the object in view, and the state into which it is propofed to reduce an injurious party, in order to obtain the ends of juftice.

Whatever may have been the subject in conteft, the immediate object of hoftilities employed by either party, is to reduce an antagonist to a state of conceffion, fo that he may no longer refift what is claimed as a right. This is the situation into which one party is reduced by a defeat; and the advantage gained by it accrues to the other, by having vanquished his enemy.

The first or immediate object of military operations, then, being to obtain the victory, a fecond is, to employ the advantage gained, fo as to preserve, fecure, or recover the right which was originally in question. And the state of war between nations may may be divided into two periods; the first, that which precedes; the fecond, that which comes after the victory. In the first period, parties are ftill contending; in the fecond, one or other is in condition to enforce his demands, or both, tired of the contest, wifh for an accommodation.

With respect to the first period, or during the conteft of parties, it is evident, that as hoftilities are lawful only in preferving a right, or in obtaining reparation of a wrong; fo, in the choice of hoftilities, fuch only are to be deemed lawful as are neceffary to obtain the victory.

This maxim in fpeculation is abundantly clear, but in practice it is often difficult to apply it; for, while one party refifts or preffes with all his force, and takes every opportunity to ftrength. en himself and to weaken his antagonist, the other party will think himself juftified in employing every means in his power to counteract operations, of which he knows not the precife ex

tent.

Contending nations, for the most part, thus urged by an apprehenfion of what an enemy may be devifing against them, proceed at once to extremities; ufe weapons and engines the most deftructive, and employ means the most likely to reduce their enemy to fubmiffion, without any fcrupulous enquiry into the degree in which fuch means may be neceffary, provided they are likely to be effectual for obtaining the purpose to which they are employed.

It is happy in the practice of nations when means of a deftructive nature, fuch as the use of poifoned weapons, infecting the springs or fupply of provifions, breach of faith, or any other destructive measures, tending to furprise an enemy, without giving him the option of submission, are fo far reprobated, as that neither party thinks of employing them, nor apprehends that they are ever to be employed against himself. In favour of such practice the law of nature is clear and peremptory: That the party attacked ought, if poffible, to have open before him the extent of his danger, as that alone may be fufficient to obtain the conceffion which conftitutes the end of the

war.

PART II.
CHAP. IV.
SECT. V.

PART II.

CHAP. IV.

During the period of conteft, to whatever extremity an enemy SECT. V that refiits may be urged, it is evident, from the general principle which limits the operations of war to fuch means as are neceffary to obtain the victory, that an enemy who fubmits or yields, is thereby entitled to quarter. The end of the war, with respect to him, is already obtained; and to refuse quarter, is justly confidered amongst civilized nations as an object of deteftation and horror.

Prifoners taken in the courfe of a war are, agreeably to the dictates of natural law, difarmed and fecured, that they may not return to ftrengthen the enemy: But as cruelties practised towards them have not any tendency to procure or to haften the victory, it is not lawful to withhold fubfiftence or reasonable accommodation in the manner of treating them.

The expence of fubfifting prisoners of war may indeed become an addition to the damage already sustained from an enemy, and may accordingly become a juft matter of charge against the party whofe wrongs give rife to the conteft; but against whom foever this question may be decided, it is evident, from the general obfervations already made, relating to the faith that is to be kept even with an enemy, that cartels or treaties of any fort, for the mutual accommodation of prifoners, are matters of ftrict obligation.

We speak not now of the regard which brave men and virtuous citizens mutually have for one another, though engaged on oppofite fides of a national quarrel. This is an article not of strict law, but of perfonal generofity, of polished manners, or of candour,

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