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In the quarrels of nations, therefore, much allowance is to be made for the mistake or misapprehenfion of parties, and even for the caution with which it is proper, in national councils, to guard against the claims of a rival, even if he should appear to be fupported by justice.

If one nation employ force in fupport of its claims, however just, the nation attacked is entitled to resist every attempt to reduce it under the power of another; and is not fafe, even in making a just conceffion, while its powers of defending itself are brought into hazard.

For these reasons, we may wave the question of justice, in the cause of a war, as depending on the actual circumstances of the particular cafe, and confider nations, acting without guile or premeditated malice of either fide, as entitled to the privileges of a fair defence.

The means of defence were, in a former fection, referred to three feparate titles, perfuafion, ftratagem, and force.

The first, it was faid, may be employed among friends, and in obtaining a favour, as well as in repelling an injury. In cafes where it may be used with fuccefs, or where it may be safe to warn an enemy of a claim, that may be fupported by force against him, it is no doubt required, that proper representations fhould be made, as the leaft hurtful means that can be employed in urging a claim of right.

The Romans, for the most part, by previous complaint and requisition of their right, proposed to fanctify their cause, and to

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give at least an appearance of juftice to the hoftilities which they PART II.
were about to commence. The manifefto and declaration of war,
which generally precedes hoftilities in modern Europe, may be
practifed with the fame effect; but they are not strictly required
by the law of nature, in every cafe whatever. A nation that has
taken the advantage of furprife, in committing an injury, cannot
complain if the fame advantage be taken of itself in making re-

Declarations may operate merely as a warning to put the injurious party on his guard, and enable him the better to persist in the wrong he has done, a fuppofition on which the practice is not at all necessary, or derivable from any principle of natural justice.

Among nations, however, like thofe of Furope, in which the fubjects of different ftates are involved together in commercial connexions, and though innocent of any public wrong, are fo much exposed to fuffer by the errors of those who govern their refpective countries, it is at leaft humane, if not in ftrict law required, that a certain warning of their danger fhould precede the actual hoftilities by which they are expofed to fuffer, and of the caufes of which they are perfectly innocent.

This confideration, it is hoped, may long recommend the practice of declaring war before the actual commencement of hoftilities, among the modern nations of Europe, who, indeed, by the continuance of it, and by custom, have given the expectation of it in fome measure the authority of convention or compact.




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 arife refpecting the ufe of deception, and the preference which the brave may give to the use of open force, even in obtaining redress of their wrongs; but we did not find, that the injurious can take any juft exception to the ufe of fratagem, 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 contest.

Although it be allowed to mislead an enemy by false appearances, and even by false 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.


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 strict law, certainly refts on a principle of humanity, abfolutely neceffary to the welfare of mankind, as without it, the calamities of war, once begun, could fcarcely 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 ftop the iffues of blood, without the final extermination of an enemy, would be cut off, and two nations at war would be obliged to perfift in hoftilities 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 distrust 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 VOL. II.






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 hoftilities, 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 hostilities employed by either party, is to reduce an antagonist to a state of conceffion, fo that he may no longer resist what is claimed as a right. This is the fituation 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 second 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 still contending; in the second, one or other is in condition to enforce his demands, or both, tired of the conteft, wifh for an accommodation.

With respect to the first period, or during the contest 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 hostilities, such only are to be deemed lawful as are neceffary to obtain the victory.

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