The Law of Nations

Chapter XII - Of the Voluntary Law of Nations, as it regards the Effects of Regular Warfare, independently of the Justice of the Cause

chapter xii 589 chapter xii Of the Voluntary Law of Nations, as it regards the Effects of Regular Warfare, independently of the Justice of the Cause. All the doctrines we have laid down in the preceding chapter, are evidently deduced from sound principles,—from the eternal rules of justice : they are so many separate articles of that sacred law which nature, or the divine author of nature, has prescribed to nations. He alone whom justice and necessity have armed, has a right to make war; he alone is empowered to attack his enemy, to deprive him of life, and wrest from him his goods and possessions. Such is the decision of the necessary law of nations, or of the law of nature, which nations are strictly bound to observe (Prelim. §7): it is the inviolable rule that each ought conscientiously to follow. But in the contests of nationsandsovereigns who live together in a state of nature, how can this rule be enforced ? They acknowledge no superior. Who then shall be judge between them, to assign to each his rights and obligations,—to say to the one, “You have a right to take up arms, to attack your enemy, and subdue him by force,”—and to the other, “Every act of hostility that you commit will be an act of injustice; your victories will be so many murders , your conquests rapines and robberies?” Every free and sovereign state has a right to determine, according to the dictates of her own conscience, what her duties require of her, and what she can or cannot do with justice (Prelim. §16). If other nations take upon themselves to judge of her conduct, they invade her liberty, and infringe her most valuable rights (Prelim. §15): and, moreover, each party asserting that they have justice on their own side, will arrogate to themselves all the rights of war, and maintain that their enemy has none, that his hostilities are so many acts of robbery, so many infractions of the law of nations, in the punishment of which all states should unite. The decision of the controversy, and of the justice of the cause, is so far from being forwarded by it, that the quarrel will become more bloody, more§188. Nations not rigidly to enforce the law of nature against each other. 590 book iii: of war calamitous in its effects, and also more difficult to terminate. Nor is this all: the neutral nations themselves will be drawn into the dispute, and involved in the quarrel. If an unjust war cannot, in its effect,confer any right, no certain possession can be obtained of any thing taken in war, until some acknowledged judge (and there is none such between nations) shall have definitively pronounced concerning the justice of the cause: and things so acquired will ever remain liable to be claimed, as property carried off by robbers. Let us then leave the strictness of the necessary law of nature to the conscience of sovereigns; undoubtedly they are never allowed to deviate from it. But as to the external effects of the law among men, we must necessarily have recourse to rules that shall be more certain and easy in the application, and this for the very safety and advantage of the great society of mankind. These are the rules of the voluntary law of nations (Prelim. §21). The law of nature, whose object it is to promote the welfareof humansociety,andtoprotectthelibertiesof allnations,— which requires that the affairs of sovereigns should be brought to an issue, and their quarrels determined and carried to a speedy conclusion ,—that law, I say, recommends the observance of the voluntary law of nations, for the common advantage of states, in the same manner as it approves of the alterations which the civil law makes in the rules of the law of nature, with a view to render them more suitable to the state of political society, and more easy and certain in their application. Let us therefore apply totheparticularsubjectof warthegeneralobservation made in our Preliminaries (§28)—a nation, a sovereign, when deliberating on the measures he is to pursue in order to fulfil his duty, ought never to lose sight of the necessary law, whose obligation on the conscience is inviolable: but in examining what he may require of other states, he ought to pay a deference to the voluntary law of nations, and restrict even his just claims by the rules of that law, whose maxims have for their object the...