What is Lawful in War?

It is not easy to determine how far a nation may push its resentment against another nation which has injured it.

The practice of ancient and modern nations differs extremely. In general, resentment is necessary and just when an injury:

• is clearly and distinctly done, or
• is plainly intended and satisfaction refused.

There are a few cases in which it is lawful even without satisfaction being demanded.

If a robber intended to kill you, it would be quite lawful for you to do all you could to prevent him. The injury is plain.

In the same way, when one nation seems to be conspiring against another, though it may have done no real injury, it should be obliged to:

• declare its intentions, and
• give security when this demand would not subject it to inconveniences.

Though this satisfaction is not demanded, when the King of Prussia saw his dominions about to be overwhelmed by the Elector of Saxony and the Queen of Hungary, it was quite right in him to be beforehand with them, and to take possession of their territories.

It would have been absurd for him to tell them that he was going to attack them. On the other hand, if it were only a debt that is due, it would be as unreasonable to go to war without demanding satisfaction.

In this case, it is only on the dilatory and evasive manner of giving satisfaction that a war becomes lawful.

Suppose a subject of any government is injured.

His offenders become natural objects of resentment. The government which protects him is also resented if it refuses satisfaction even if most of the nation is:

• perfectly innocent, and
• knows nothing about the affair.

In the recent war with France, less than 5% of the French or British knew anything of the offences done. On what principle of justice do we take their goods from them, and distress them in all ways?

This cannot be founded on justice and equity. It must be founded on necessity. In this case, necessity is a part of justice. Mr. Hutcheson very ingeniously accounts for this.

But he has not built his reasoning on a proper foundation. He says that every nation maintains and supports the government for its own good. If the government commits any offence against a neighbouring sovereign or subject, and its own people continue to support and protect it, they thereby become accessory and liable to be punished with it.

By the Roman law, if any of those slaves had done any damage to another, the owner must:

• keep the slave no longer, or
• pay the damage

Similarly, a nation must:

• allow itself to be liable for the damages, or
• give up the government altogether.

This reasoning is excessively ingenious. But the cases are not parallel at all. A man can do with his slave as he pleases. He can put him away or pay what damages he has caused.

But in most cases, a nation cannot either. A government is often maintained, not for the nation’s preservation, but its own. It was never the doctrine of any public law that the subjects could dispose of the sovereign.

This doctrine is not even in England, where the sovereign’s right has been so much contested.

How then can a nation be guilty of an injury which it could not do?

The whole nation is a reasonable object of resentment because we do not feel for those at a distance as we do for those near us.

We have been injured by France. Our resentment rises against the whole nation instead of the government. Through a blind, indiscriminating faculty natural to mankind, they become the objects of an unreasonable resentment.

In a war between France and England, a Dane would naturally have the same feelings that we do. He would get involved without distinguishing the guilty and the innocent.

However, this is quite contrary to the rules of justice, observed with regard to our own subjects. We would rather let 10 guilty persons escape than let one innocent person suffer.

Another cause is that it is often very difficult to get satisfaction from a subject or from a sovereign that may have offended. They are generally in the heart of the country and perfectly secured. If we could get at them, they would be the first objects of our resentment.

But as this is impossible, we must make reprisals some other way.

We have suffered unjustly because of our connections. Let them also suffer unjustly on account of theirs.

In war, there must always be the greatest injustice, but it is inevitable.

Ancient and modern nations differs widely with regard to the length to which war may be carried. If barbarians do not kill those taken in war, they can dispose of prisoners as they please. All who made war were considered as robbers and violators of the peace of society. Such punishments were thought adequate.

Even among the Romans, if the battering ram had once struck the walls, no agreement nor capitulation was allowed. Everything fell into the hands of the conquerors. They were at liberty to use it as they pleased.

So much was this the case in Cicero’s time. To him, it was the greatest stretch of humanity that a surrender was allowed after the ram had once struck the walls.

Force and fraud were the great virtues of war in the past.

Modern manners have come to a greater degree of refinement with respect to persons and effects.

• Captives in war are now not made slaves.
  • They are not liable to oppression.
• An officer is set free on his parole or word of honour.
  • In the war between France and England, they generally treated our wounded prisoners better than their own wounded soldiers.

The British push this point of gallantry farther than any nation.

6-pence a day was allowed the French prisoners at Edinburgh and elsewhere.

• Its purchasing power was reduced by sub-contracts, etc and so £10,000 was generously collected for them.
• In general, prisoners of war are now as well treated as other people.

In the same way, cartel treaties are an evidence of our refinement in humanity.

• In it, soldiers and sailors are valued and exchanged at the end of every campaign.

The nation which has lost most prisoners pays the balance.

In the recent war, we refused to enter into any such treaty with France for sailors.

By this wise regulation, we soon unmanned their navy since we took much more than they. It was the lack of humanity which rendered ancient towns so obstinate. For it was better to sustain the most terrible hardships than to surrender.

But now, the besieged know very well how they will be treated before they capitulate.

• They will run no great risk before they do so.