Morality, by Custom, by Practice, and by the Reason of the Thing, so far as States, in their corporate character, are affected by them. But, with respect to the Individual subjects of States, and the operation upon them of belligerent rights which spring out of the abnormal(z) state of war, and especially with reference to the notification of the particular right of blockade, the doctrine laid down by Blackstone will be found, when the subject comes under discussion, to be extremely applicable.

XLVIII. We have now discussed the causes which affirmatively justify war, and the pleas which it is competent to a State to allege either in bar or in mitigation of hostilities. It remains to consider briefly the negative side of the question, and to mention the causes which, however often they may have led to this terrible calamity, do not justify war. c.(a)

It appears, then, that it is not lawful to make war for the purpose of hindering that aggrandizement of a nation which arises out of the condition of its laws, its liberties, its agriculture, its manufactures, its commerce, or any other source of domestic internal prosperity.

It is not lawful to make war for the purpose of compelling a nation to adopt a particular form of government, or even to vindicate the true religion from the insults of idolatry, or to propagate a particular religion —not even that of our blessed Lord,(b)—or, as Grotius observes, to bring about the fulfilment of prophecy; the instrument of which fulfilment may perhaps be the criminal acts of individuals or

[*65] States.(c)

Lastly, if the reasoning be sound and the proposition correct which have been advanced in the early part of this work, (d) it is not lawful to make war for the punishment(e) of a nation.

The early fecial practice of Rome conveys, amid all the pedantic minuteness of its forms, a lesson upon the scrupulous manner in which

(z) Vide ante, p. 1.

(a) "Quæ autem sint causæ injustæ cognosci aliquatenus potest ex justis causis quas hactenus explicavimus. Rectum enim obliqui est index. Sed perspicuitatis causâ summa genera annotabimus."-Grotius, 1. ii. c. xxii. 4.

(6) "Perduxit nos ad delicta quæ in Deum committuntur, quæritur enim an ad ea vindicanda bellum suscipi potest . . . Potior ratio pro sententiâ negante justa esse bella talia, hæc est, quando Deus sufficiat vindicandis quæ in se committuntur." -Grot., 1. ii. c. xx. s. 44.

"Concerning the means of procuring unity, men must beware that, in the procuring or muniting of religious unity, they do not dissolve or deface the laws of charity and of human society. There be two swords amongst Christians, the spiritual and the temporal: and both have their due office and place in the maintenance of religion: but we may not take up the third sword, which is Mahomet's sword, or like unto it, that is, to propagate religion by wars, or by sanguinary prosecutions to force consciences, except it be in cases of overt scandal, blasphemy, or intermixture of practice against the State."-Bacon's Essays, of Unity in Religion.

“The overt scandal,', and "blasphemy," are not, if the doctrine in the text be correct, among the just causes of war. (c) Grot., l. ii. c. xxii. s. 15.

(d) Vol. i. c. i. s. 11.

(e) Grotius: the c. xx. of 1. ii. is "De Pœnis." It begins, "Supra cum de causis ex quibus bella suscipiuntur agere cœpimus, facta diximus duplici modo considerare, aut ut reparari possunt, aut ut puniri. Priorem partem jam absolvimus. Superest posterior quæ est de pœnis: quæ res eò diligentiùs tractanda est nobis, quod origo ejus et natura, minus intellecta, multis errationibus causam dedit." Ib., c. xxi., is "De Pœnarum Communicatione."

International Justice should be prosecuted, which ought to sink deep into the hearts of Christian Governments. Grotius reminds us,(ƒ) that upon the same principle as the Romans consulted the Collegium Feciale, the early Christian Emperors rarely made war without consulting the bishops, in order that, if religion interposed any impediment, they might be made aware of it; and among the most striking speeches in Shakspere, is the adjuration of Henry V. to the Archbishop of Canterbury, to speak boldly his opinion as to the lawfulness of the intended war against France; as the verses contain an admirable admonition upon the terrible wickedness of an unjust war, it *may perhaps be allowed to relieve the necessary dryness of a legal discussion, and to close this chapter by their citation :

"And God forbid, my dear and faithful lord,

That ye should fashion, bow, or wrest your reading,

Or nicely charge your understanding soul
With opening titles miscreate, whose right
Suits not in native colours with the truth.
For God doth know how many now in health
Shall drop their blood in approbation
Of what your reverence shall incite us to.
Therefore, take heed how you impawn our person,
How you awake the sleeping sword of war;

We charge you, in the name of God, take heed:

For never two such kingdoms did contend

Without much fall of blood; whose guiltless drops

Are every one a woe, a sore complaint

'Gainst him whose wrongs give edge unto the swords
That make such waste in brief mortality.

Under this conjuration speak, my lord,

And we will hear, note, and believe in heart

That what you speak is in your conscience washed,
As pure as sin from baptism."(g)

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XLIX. THE necessity of War, and the laws relating to it, are a consequence of the depraved nature of societies, just as the necessity of the criminal law of a society is a consequence of the depraved nature of the individual.(a)

(6) War is the exercise of the international right of action, to which, from the nature of the thing and the absence of any common superior tribunal, nations are compelled to have recourse, in order to assert and vindicate their rights.

(f) L. ii. c. xxiii. s. 4.

a) Hooker, Eccles. Pol., b. i. s. 10.

(g) Henry V. act i. sec. 1.

(b) The student of Grotius will perhaps find that he will obtain the most consecutive view of the great master's opinion upon the whole subject of War by reading the whole of I. i. and 1. ii. c. i. to end of s. 17, then leaping to 1. ii. c. xx. s. 38, and from thence reading on to the end of c. v. of 1. iii.

A War ought, therefore, to combine the following characteristics 1. It must be declared or waged by the public authority of the State, and carried on through the agency of those who have been duly commissioned for that purpose by that authority. A War between private individuals who are members of a society cannot exist. The use of force in such a case is a trespass or violation of Municipal Law, and punishable as such, and not War. "Neque, quod singulorum hominum est, rectè dixeris privatum bellum, quia privatum nihil est, nisi ratione publici, quod, ubi civitas non est, nullum est."(c) According to an early but very sound definition offered by Albericus Géntilis, the pre[*68] cursor of Grotius, "Bellum est publicorum armorum justa contentio." (d)

*

2. It must have the reparation of injury, the re-establishment of right, the restoration of order into the mutual relations of States, and security against future derangement of these relations, for its object and end.

3. The means, therefore, through which this terrible process is to be executed, must be in strict conformity with this end.

War is not to be considered as an indulgence of blind passions, but as an act of deliberate reason, and, as Lord Bacon says, "no massacre or confusion, but the highest trial of right.”(e)

L. This international right of action has become from long usage, implying general consent, from the reason of the thing, from Christian principles, and partly, no doubt, from the peculiar institution of chivalry, well furnished with rules and maxims for its conduct. It is regulated by a code as precise and as well understood as that which governs the intercourse of States in their pacific relations to each other.

The great principle upon which all these rules are framed, is that of, on the one hand, compelling the enemy to do justice as speedily as possible, and, on the other hand, of abstaining from the infliction of all injuries both upon the subjects of the enemy, and upon the Government and subjects of third Powers which do not, certainly and clearly, tend to the accomplishment of this object.

(f)Wanton devastation of the enemy's territory, wanton cruelty exercised towards his subjects, are, therefore, according to the principles and practice of Christian nations, unjustifiable and

[*69]

illegal.

Nevertheless, it is to be remembered, that as the will of the subject is bound up in that of his Government, it may well be that the consequences of the conduct of his rulers may be attended with injury both to the person and property of the subject, and that the enemy is justified in striking through them at the Government from which he has received a wrong, and for which redress has been denied.

It is, in fact, in many cases, only through the privations and distresses

(c) Bynkershoek, Q. J. P., 1. i. c. i. (e) Vide ante, vol. i. p. 11.

(d) De Jure Belli, lib. i. cap. ii.

(f) "Le droit des gens est naturellement fondé sur ce principe, que les diverses nations doivent dans la paix le plus de bien, et dans la guerre le moins de mal qu'il est possible, sans nuire à leurs véritables intérêts."-Montesquieu, De l'Esprit des Lois, 1. i. c. iii. Blackstone's Comm., b. iv. c. v.

of the subject that his Government will be induced to put an end to the War by according the justice demanded.

Nevertheless, as War is the conflict of societies, that is, of corporate bodies recognising and governed by law in all their actions, War must be and is, as has been stated, carried on with reference to rules and principles of law governing that particular mode of social action; and if this were true in the time of Cicero, who said that in the beginning, the continuing, and the ending of War, justice and faith were largely interested, (g) surely it is not less true since the introduction and profession of Christianity; and if the Romans have justly merited our praise for those Fecial(h) institutions by which they sought to invest War with the character and formalities of civil justice, it would be disgraceful to Christian Governments if they assented to the doctrine that in War the furies are to be let loose, and each party is to be at liberty to do that which seems good in his own eye. It is the more necessary to protest against such a doctrine as, from particular causes, such as the desire to maintain a particular theory, it has received some colour of sanction from the writings of eminent men.

Thus Mr. Hume, arguing "that public utility is the sole origin of justice, and that reflections on the beneficial consequences *of this virtue are the sole foundation of its merit," (i) supports his [*70] proposition by a reference to public War: "What is it," says he, “but a suspension of justice among the warring parties?—the laws of War which then succeed to those of equity and justice, are rules calculated for the advantage and utility of that particular state in which men are now placed." Mr. Hume has been well answered by one of his countrymen and a brother philosopher: "I answer," says Professor Reid,(k) "when war is undertaken for self-defence or for reparation of intolerable injuries, justice authorizes it. The laws of War which have been described by many judicious moralists are all drawn from the fountain of justice and equity; and everything contrary to justice is contrary to the laws of War. That justice which prescribes one rule of conduct to a master, another to a servant, one to a parent, another to a child, prescribes also one rule of conduct towards a friend, and another towards an enemy. I do not understand what Mr. Hume means by the advantage and utility of a state of War, for which he says the laws of War are calculated, and succeed to those of justice and equity. I know no laws of War that are not calculated for justice and equity."(1)

Bynkershoek, rioting in the exercise of his vigorous but somewhat coarse intellect, expresses his opinion that everything is lawful against an enemy as such. "You make war," he says, "because you think that

(g) "Sequitur enim de jure belli: in quo et suscipiendo et gerendo et deponendo jus ut plurimum valet et fides."-De Leg., 1. ii. c. xiv.

(h) "Horumque ut publici interpretes essent lege sanximus."-Ib

(i) Hume's Essays, Of Justice, vol. ii. pt. i. p. 217.

(k) Reid's Essays on the Powers of the Human Mind, vol. iii. p. 435, Essay V., "Of Justice."

(7) Mr. Hume argues, consistently, that when a criminal is punished, there "is a suspension of the ordinary rules of justice," and that it is suitable that there should be such a suspension.

your enemy, on account of the injury which he has done to you, has deserved the destruction of himself and his subjects; and that being your object, what does it matter how you attain it? You may therefore kill him when he is unarmed, or hire an assassin *to do so,(m) poison.

[*71] him, or make a slave of him. A judge," he says, "who orders a convicted criminal to be slain by the axe of the executioner, though he be in chains and unarmed, is not, on that account, called unjust. If he were to loosen the bonds of the criminal and put a weapon into his hands, there would be a trial of courage and fortune, and not a punishment of a wrong-doer."

This illustration appears, by the incorrectness of its analogy, to furnish an answer to the doctrine which it is adduced to support.

In the case of the criminal, there is no doubt that he is a wrong-doer, and that his execution has been lawfully ordered by a competent authority.(n) But in the case of contending nations, it may, and we must hope generally does, happen that both parties believe that right is on their side. "Atque hinc," says Grotius, "passim recepta est sententia, subditos quod attinet, dari bellum utrimque justum, id est injustitiâ vacans, quò illud pertinet."(o) But as States acknowledge no common tribunal upon earth, they are constrained, as the civilians say, litem suam facere, or, according to the common English phrase, "to take the law into their own hands," and *to consider success in the strife as [*72] the decision of God in their favour.

To say that this is often a mistaken presumption, to object that this method of obtaining justice is unsatisfactory, uncertain, and attended with cruel injury to the innocent, is but to complain that we live in a world in which evil and good are mixed together, and which has the blemishes of imperfection ;(p) but this absence of a common tribunal, this want of a competent International Judge, this consequent necessity of war, does furnish in its admitted imperfection, as a mode of judicial procedure, a very good reason to all societies, and especially to all Christian societies, why a broad distinction should be made between the criminal convicted by the judge, and the enemy conquered by the enemy,

(m) Dixi, per vim. Non per vim justam, omnis enim vis in bello justa est, si me audias, et ideo justa, cum liceat hostem opprimere, etiam inermem, cum liceat veneno, cum liceat percussore immisso, et igne factitio, quem tu habeas, et ille forte non habet; denique cum liceat, ut uno verbo dicam, quomodocunque libuerit.". Bynkershock, Q. J. P., l. i. c. l. I am sorry to see that the words percussore immisso are incorrectly rendered missile weapons, in the generally useful translation of Mr. Du Ponceau. (Philadelphia, 1810.)

(n) "Quod inter duos populos de jure belli pronuntiare velle periculosum fuerat aliis populis, qui eâ ratione bello alieno implicarentur, sicut Massilienses in causâ Cæsaris et Pompeji dicebant, neque sui judicii neque suarum esse virium discernere utra pars justiorem haberet causam: deinde, quod etiam in bello justo vix satis cognosci potest ex indiciis externis, quis justus sit se tuendi, sua recuperandi, aut pœnas exigendi modus, ita ut omnino præstiterit hæc religioni bellantium exigenda relinquere, quam ad aliena arbitria vocare."-Grotius, I. iii. c. iii. 4. (0) L. ii. c. xxvi. s. 4, p. 3.

(p) "As to War, if it be the means of wrong and violence, it is the sole means of justice among nations: nothing can banish it from the world. They who say otherwise, intending to impose upon us, do not impose upon themselves. But it is one of the greatest objects of human wisdom to mitigate those evils which we are unable to remove."-Burke, Letters on â Regicide Peace, viii. 181.