The Rights of War and Peace: In Three Volumes

Chapter I. What War is, and what Right is

133 Book I u c h a p t e r i u What War is, and what Right is. I. All 1 the Differences of those who do not acknowledge one common Civil Right, whereby they may and ought to be decided; such as are a multitude of People 2 that form no Community, or those that are Members of different Nations, whether 3 private Persons, or Kings, or other Powers invested with an Authority equal to that of Kings, as the Nobles of a State, or the Body of the People, in Republican Governments: All such Differences, I say, relate either to the Affairs of War, or Peace. But because War is undertaken for the Sake of Peace, and there is no ConI . See Pufendorf, Law of Nature and Nations. B. I. Chap. I. § 8. Note I. 2. Such were the antient Patriarchs, who lived in Tents, and travelled from Place to Place, without forming a Community or depending on any Government; though there were civil Societies already established in the World at that Time. The learned Gronovius on this Place, alledges the Example of the Aborigines, the first Inhabitants of Italy, and of several People in Africa; The Aborigines, a savage People, free and independent, without Laws or Government. Salust. Bell. Catil. Cap. VI. The Getulians and Libyans, a rough and uncivilized Set of Men, were the first Inhabitants of Africa . . . they lived without any Government or Laws, ortheleastMeasuresof Discipline among them. Idem Bell. Jugurth. Cap. XXI. Edit. Wass. They (the remote Inhabitants of Cyrenaica) being scattered about the Country in Families, and living under the Direction of no Law, had no common Regulations. PomponiusMela,Lib.I.Cap.VIII. Num. II. Edit. Voss. We find even at this Day amongst the Arabians, and Africans several Nations of Savages, and Vagrants, without Laws, Magistrates or any Form of Government. 3. See B. II. Chap. XI. § 1. Num. 5. I. The Order of the Treatise. 134 chapter i troversy from whence War may notarise,allsuchQuarrels,ascommonly happen, will properly be treated under the Head of the Right of War; and then War itself will lead us to Peace, as to its End and Purpose. II. 1. Being then to treat of the Right of War, we must consider what that War is which we are to treat of, and what the Right is which we search for. Cicero 4 defines War a Dispute by force. But Custom has so prevailed, that 5 not the Act of Hostility, but the StateandSituation of the contending Parties, now goes by that Name; so that War is the State or Situation of those (considered 6 in that Respect) who dispute by Force of Arms. Which general Acceptation of the Word comprehends 4. II. For since there are two Ways of disputing Things, one by Debate, the other by Force, &c. De Offic. Lib. I. Cap. XI. See Pufendorf. B. V. Chap. XIII. where he treats of other Ways of deciding Differences in the independent State of Nature. 5. Philo the Jew considers as Enemies not only such as actually attack us by Sea or by Land, but also those who make Preparations for either, those who erectBatteriesagainst our Ports, or Walls, though no Battle is given. De Specialib. Lib. II. p. 790. Edit. Paris. Servius, on Verse 545, of the first Book of the Eneid. ——— Quo justior alter Nec pietate fuit, nec bello major & armis. Makes this Remark. This is not an idle Repetition; for the Word Bellum, (War)includes Counsels, and Measures, taken against the Enemy; that is a Skill in Military Affairs. Whereas the Word Arma, (Arms) is used only to express the very Act of employing Forces: thus the former relates to the Mind, the latter to the Body. The same Commentator, on Verse 547. of B. VIII. says: Bellum is the whole Time employ’d in making the necessary Preparations for fighting or in Acts of Hostility: and Praelium denotes an actual Engagement . Grotius. 6. For not only those who are at War, stand in several different Relations to other Persons, who observe a Neutrality, by Vertue of which they do many Things that by no Means relate to a State of Hostility: but they also may and frequently do act towards each other, as if they were not Enemies; so that in such Cases the Use of Force, and the Laws of War are suspended. This takes Place when two Enemiesenter into an Agreement, or Treaty; as the Author...