The Law of Nations

Chapter XV - Of the Right of private Persons in War

612 book iii: of war chapter xv Of the Right of private Persons in War. The right of making war, as we have shewn in the first chapter of this book, solely belongs to the sovereign power, which not only decides whether it be proper to undertake the war, and to declare it, but likewise directs all its operations, as circumstances of the utmost importance to the safety of the state. Subjects, therefore, cannot, of themselves, take any steps in this affair; nor aretheyallowedtocommitanyactof hostility without orders from their sovereign. Be it understood, however, that, under the head of “hostilities,” we do not here mean to include selfdefence . A subject may repel the violence of a fellow-citizen when the magistrate’s assistance is not at hand; and with much greater reasonmay he defend himself against the unexpected attacks of foreigners. The sovereign’s order, which commands acts of hostility and gives a right to commit them, is either general or particular. The declaration of war, which enjoins the subjects at large to attack the enemy’s subjects, implies a general order. The generals, officers, soldiers, privateersmen, and partisans, being all commissioned by the sovereign, make war by virtue of a particular order. But, though an order from the sovereign be necessary to authorisethe subjects to make war, that necessity wholly results from thelawsessential to every political society, and not from any obligation relative to the enemy. For, when one nation takes up arms against another, she from that moment declares herself anenemytoalltheindividualsof thelatter, and authorises them to treat her as such. What right could she have in that case to complain of any acts of hostility committed against her by private persons without orders from their superiors? The rule, therefore, of which we here speak, relates rather to public law in general, than to the law of nations properly socalled,ortotheprinciplesof thereciprocal obligations of nations. If we confine our view to the law of nations, considered in itself,— when once two nations are engaged in war, all the subjects of the one may commit hostilities against those of the other, and do them all the§223. Subjects cannot commit hostilities without the sovereign’s order.§224. That order may be general or particular.§225. Source of the necessity of such an order.§226. Why the law of nations should have adopted this rule. chapter xv 613 mischief authorised by the state of war. But should two nations thus encounter each other with the collective weight of their whole force,the war would become much more bloody and destructive,andcouldhardly be terminated otherwise than by the utter extinction of one of the parties . The examples of ancient wars abundantly prove the truth of this assertion to any man who will for a moment recall to mind the first wars waged by Rome against the popular republics by which she was surrounded. It is therefore with good reason that the contrary practice has grown intoacustom withthenationsof Europe,—atleastwiththose that keep up regular standing armies or bodies of militia. The troops alone carry on the war, while the rest of the nation remain in peace. And the necessity of a special order to act is so thoroughly established, that, even after a declaration of war between two nations, if the peasants of themselves commit any hostilities, the enemy shews them no mercy, but hangs them up as he would so many robbers or banditti. The crews of private ships of war stand in the same predicament: a commission from their sovereign or admiral can alone, in case they are captured, insure them such treatment as is given to prisoners taken in regular warfare. In declarations of war, however, the ancient form is still retained, by which the subjects in general are ordered, not only to break off all intercourse with the enemy, but also to attack him. Custom interpretsthis general order. It authorises, indeed, and even obliges every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands; but it does not invite the subjects to undertake any offensive expedition without a commission or particular order. There are occasions, however, when the subjects may reasonably suppose the sovereign’s will, and act in consequence of his tacit command. Thus, although the operations of war are by custom generally confined to the troops, if the inhabitants of a strong place, taken by the enemy, have not promised or sworn submission to him, and...