What is Lawful in War?

Part 1

How can war be undertaken? How far? How can its rights be enforced?

These can be viewed in the light of privileges from the law of nature and of nations, or as the effects of some prior treaty or promise.

We shall first focus on the actions which are authorised by the law of nature.

II.

The means employed in the pursuit of any object must get their moral character from the nature of its end.

We may justly use those means, provided they be lawful, which are necessary to the attainment of any right.

Right in this place means what is strictly so called, signifying the moral power of action, which any one as a member of society possesses.

On which account, a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack, though he who makes it, as for instance, a soldier in battle, in doing so, is guilty of no crime. For this is a right resulting not properly from the crime of another, but from the privilege of self-defence, which nature grants to every one.

Besides, if any one has SURE and UNDOUBTED grounds to apprehend imminent danger from any thing belonging to another, he may seize it without any regard to the guilt or innocence of that owner. Yet he does not by that seizure become the proprietor of it. For that is not necessary to the end he has in view. He may DETAIN it as a precautionary measure, till he can obtain satisfactory assurance of security.

Upon the same principle any one has a natural right to seize what belongs to him, and is unlawfully detained by another: or, if that is impracticable, he may seize something of equal value, which is nearly the same as recovering a debt. Recoveries of this kind establish a property in the things so reclaimed; which is the only method of restoring the equality and repairing the breaches of violated justice. So too when punishment is lawful and just, all the means absolutely necessary to enforce its execution are also lawful and just, and every act that forms a part of the punishment, such as destroying an enemy’s property and country by fire or any other way, falls within the limits of justice proportionable to the offence.

III. In the second place, it is generally known that it is not the ORIGIN only of a just war which is to be viewed as the principal source of many of our rights, but there may be causes growing out of that war which may give birth to additional rights. As in proceedings at law, the sentence of the court may give to the successful litigant other rights besides those belonging to the original matter of dispute. So those who join our enemies, either as allies or subjects, give us a right of defending ourselves against THEM also. So too a nation engaging in an unjust war, the injustice of which she292 knows and ought to know, becomes liable to make good all the expences and losses incurred, because she has been guilty of occasioning them. In the same manner those powers, who become auxiliaries in wars undertaken without any reasonable grounds, contract a degree of guilt and render themselves liable to punishment in proportion to the injustice of their measures. Plato approves of war conducted so far, as to compel the aggressor to indemnify the injured and the innocent.

IV. In the third place, an individual or belligerent power may, in the prosecution of a lawful object, do many things, which were not in the contemplation of the original design, and which in THEMSELVES it would not be lawful to do. Thus in order to obtain what belongs to us, when it is impossible to recover the specific thing, we may take more than our due, under condition of repaying whatever is above the real value. For the same reason it is lawful to attack a ship manned by pirates, or a house occupied by robbers, although in that ship, or that house there may be many innocent persons, whose lives are endangered by such attack.

But we have had frequent occasion to remark, that what is conformable to right taken in its strictest sense is not always lawful in a moral point of view. For there are many instances, in which the law of charity will not allow us to insist upon our right with the utmost rigour. A reason for which it will be necessary to guard against things, which fall not within the original purpose of an action, and the happening of which might be foreseen: unless indeed the action has a tendency to produce advantages, that will far outweigh the consequences of any accidental calamity, and the apprehensions of evil are by no means to be put in competition with the sure hopes of a successful issue. But to determine in such cases requires no ordinary penetration and discretion. But wherever there is any doubt, it is always the safer way to decide in favour of another’s interest, than to follow the bent of our own inclination. “Suffer the tares to grow, says our divine teacher, least in rooting up the tares you root up the wheat also.”

The general destruction, which the Almighty, in right of his supreme Majesty, has sometimes decreed and executed, is not a rule, which we can presume to follow. He has not invested men, in the exercise of power, with those transcendent sovereign rights. Yet he himself,293 notwithstanding the unchangeable nature of his sovereign will, was inclined to spare the most wicked cities, if ten righteous persons could be found therein. Examples like these may furnish us with rules to decide, how far the rights of war against an enemy may be exercised or relaxed.

V. It frequently occurs as a matter of inquiry, how far we are authorised to act against those, who are neither enemies, nor wish to be thought so, but who supply our enemies with certain articles. For we know that it is a point, which on former and recent occasions has been contested with the greatest animosity; some wishing to enforce with all imaginary rigour the rights of war, and others standing up for the freedom of commerce.

In the first place, a distinction must be made between the commodities themselves. For there are some, such as arms for instance, which are only of use in war; there are others again, which are of no use in war, but only administer to luxury; but there are some articles, such as money, provisions, ships and naval stores, which are of use at all times both in peace and war.

As to conveying articles of the first kind, it is evident that any one must be ranked as an enemy, who supplies an enemy with the means of prosecuting hostilities. Against the conveyance of commodities of the second kind, no just complaint can be made.—And as to articles of the third class, from their being of a doubtful kind, a distinction must be made between the times of war and peace. For if a power cannot defend itself, but by intercepting the supplies sent to an enemy, necessity will justify such a step, but upon condition of making restoration, unless there be some additional reasons to the contrary. But if the conveyance of goods to an enemy tends to obstruct any belligerent power in the prosecution of a lawful right, and the person so conveying them possesses the means of knowing it; if that power, for instance, is besieging a town, or blockading a port, in expectation of a speedy surrender and a peace, the person, who furnishes the enemy with supplies, and the means of prolonged resistance, will be guilty of an aggression and injury towards that power. He will incur the same guilt, as a person would do by assisting a debtor to escape from prison, and thereby to defraud his creditor. His goods may be taken by way of indemnity, and in discharge of the debt. If the person has294 not yet committed the injury, but only intended to do so, the aggrieved power will have a right to detain his goods, in order to compel him to give future security, either by putting into his hands hostages, or pledges; or indeed in any other way. But if there are evident proofs of injustice in an enemy’s conduct the person who supports him in such a case, by furnishing him with succours, will be guilty not barely of a civil injury, but his giving assistance will amount to a crime as enormous, as it would be to rescue a criminal in the very face of the judge. And on that account the injured power may proceed against him as a criminal, and punish him by a confiscation of his goods.

These are the reasons, which induce belligerent powers to issue manifestoes, as an appeal to other states, upon the justice of their cause, and their probable hopes of ultimate success. This question has been introduced under the article, which refers to the law of nature, as history supplies us with no precedent to deduce its establishment from the voluntary law of nations.

We are informed by Polybius, in his first book, that the Carthaginians seized some of the Romans, who were carrying supplies to their enemies, though they afterwards gave them up, upon the demand of the Romans. Plutarch says that when Demetrius had invested Attica, and taken the neighbouring towns of Eleusis and Rhamnus, he ordered the master and pilot of a ship, attempting to convey provisions into Athens, to be hanged, as he designed to reduce that city by famine: this act of rigour deterred others from doing the same, and by that means he made himself master of the City.

VI. Wars, for the attainment of their objects, it cannot be denied, must employ force and terror as their most proper agents. But a doubt is sometimes entertained, whether stratagem may be lawfully used in war. The general sense of mankind seems to have approved of such a mode of warfare. For Homer commends his hero, Ulysses, no less for his ability in military stratagem, than for his wisdom. Xenophon, who was a philosopher as well as a soldier and historian, has said, that nothing can be more useful in war than a well-timed stratagem, with whom Brasidas, in Thucydides agrees, declaring it to be the method from which many great generals have derived the most brilliant reputation. And in Plutarch, Agesilaus maintains, that deceiving an enemy is both295 just and lawful. The authority of Polybius may be added to those already named; for he thinks, that it shews greater talent in a general to avail himself of some favourable opportunity to employ a stratagem, than to gain an open battle. This opinion of poets, historians, and philosophers is supported by that of Theologians. For Augustin has said that, in the prosecution of a just war, the justice of the cause is no way affected by the attainment of the end, whether the object be accomplished by stratagem or open force, and Chrysostom, in his beautiful little treatise on the priestly office, observes, that the highest praises are bestowed on those generals, who have practised successful stratagems. Yet there is one circumstance, upon which the decision of this question turns more than upon any opinion even of the highest authority, and that is, whether stratagem ought to be ranked as one of those evils, which are prohibited under the maxim OF NOT DOING EVIL, THAT GOOD MAY ENSUE, or to be reckoned as one of those actions, which, though evil IN THEMSELVES, may be so modified by particular occasions, as to lose their criminality in consideration of the good, to which they lead.

VII. There is one kind of stratagem, it is proper to remark, of a negative, and another of a positive kind. The word stratagem, upon the authority of Labeo, taken in a negative sense, includes such actions, as have nothing criminal in them, though calculated to deceive, where any one, for instance, uses a degree of dissimulation or concealment, in order to defend his own property or that of others.58 So that undoubtedly there is something of harshness in the opinion of Cicero, who says there is no scene of life, that will allow either simulation, or dissimulation to be practised. For as you are not bound to disclose to others all that you either know or intend; it follows that, on certain occasions, some acts of dissimulation, that is, of concealment may be lawful. This is a talent, which Cicero, in many parts of his writings, acknowledges that it is absolutely necessary for statesmen to possess. The history of Jeremiah, in the xxxviiith chapter of his prophecy, furnishes a remarkable instance of this kind. For when that prophet was interrogated296 by the king, respecting the event of the siege, he prudently, in compliance with the king’s orders, concealed the real matter from the nobles, assigning a different, though not a false reason for the conference, which he had had. In the same manner, Abraham called Sarah, his sister, an appellation used familiarly at that time to denote a near relation by blood, concealing the circumstance of her being his wife.