[§ 2. What is Lawful in War?]

[Second,] quantum liceat [in] bello? How far a nation may push the resentment of an injury against the nation which has injured them, is not easy to determine. The practice of ancient and modern nations differs extremely. In general, when an injury is clearly and distinctly done, or when it is plainly intended and satisfaction Edition: current; Page: [268] refused, resentment is necessary and just. There are a few cases in which it is lawful even without satisfaction being demanded. If a robber was plainly intending to kill you, it would be quite lawful in you to do all you could to prevent him. The injury is plain. In the same manner, when one nation seems to be conspiring against another, though it may have done no real injury, it is necessary that it should be obliged to declare its intentions, and to give security when this demand would not subject it to inconveniences. Though this satisfaction be not demanded, when the King of Prussia saw his dominions about to be overwhelmed by the Elector of Saxony and the Queen of Hungary1, it was quite right in him to be beforehand with them, and to take possession of their territories, and nothing would have been more absurd than for him to have told them that he was going to attack them. On the other hand, if it be only a debt that is due, it would be as unreasonable to go to war without demanding satisfaction, and it is only upon the dilatory and evasive manner of giving satisfaction that a war in this case becomes lawful.

But to consider a little more particularly what is lawful in war, suppose a subject of any government is injured, they who have injured him become natural objects of resentment, and also the government which protects him if it refuse satisfaction, but the greater part of the nation is perfectly innocent, and knows nothing about the affair. In the late war with France, not one out of twenty, either of the French or us, knew anything of the offences done. Upon what principle or foundation of justice therefore do we take their goods from them, and distress them in all possible ways? This can by no means be founded upon justice and equity, properly so called, it must be upon necessity, which, indeed, in this case, is a part of justice.

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Mr. Hutcheson1 indeed very ingeniously accounts for this, but if we examine his opinion thoroughly, we shall find that he has not built his reasoning on a proper foundation. Every nation, says he, maintains and supports the government for its own good. If the government commit any offence against a neighbouring sovereign or subject, and its own people continue to support and protect it, as it were, in it, they thereby become accessory and liable to punishment along with [it]. As by the Roman law, if any of those slaves which every private person kept for his own advantage, had done any damage to another, one of these two things was to be done, he must either keep the slave no longer, or pay the damage, in like manner a nation must either allow itself to be liable for the damages, or give up the government altogether2. It is to be observed that in this reasoning, though excessively ingenious, the cases are not in the smallest degree parallel. A man can do with his slave as he pleases, he can either put him away, or pay what damages he has occasioned, but a nation in most cases can neither do the one nor the other. 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 had a right to dispose of the sovereign, not even in England, where his right has been so much contested. How then comes it that a nation should be guilty of an injury which was not in its power?

The real cause why the whole nation is thought a reasonable object of resentment is that 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, and they, through a blind indiscriminating faculty natural to mankind, Edition: current; Page: [270] become the objects of an unreasonable resentment. In a war between France and us, a Dane would naturally enter into the same sentiments that we do, and would involve together without distinction both the guilty and the innocent1. This is however quite contrary to the rules of justice, observed with regard to our own subjects. We would rather choose that ten guilty persons should escape than that one innocent person should 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 well secured. If we could get at them no doubt 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 on account of our connexions, let them also suffer unjustly on account of theirs. In war there must always be the greatest injustice, but it is inevitable.

The practice of ancient and modern nations differs widely with regard to the length to which the outrages of war may be carried. Barbarians, if they do not kill those taken in war, may dispose of them as they please. As all who made war were considered as robbers and violators of the peace of society, such punishments were by no means thought inadequate. Even among the Romans, if the battering ram had once struck the walls, no agreement nor capitulation was allowed, but everything fell into the hands of the conquerors, and they were at liberty to use it as they pleased. So much was this the case in Cicero’s time that he represents it as the greatest stretch of humanity that a capitulation was allowed after the ram had once struck the walls2. But though force and fraud were in Edition: current; Page: [271] former periods the great virtues of war, modern manners have come to a greater degree of refinement, both with respect to persons and effects. Captives in war are now by no means made slaves or liable to oppression: an officer is set free upon his parole or word of honour; and in the war between France and us, they generally treated our wounded prisoners better than their own wounded soldiers1. Indeed, there is no nation that pushes this point of gallantry farther than we do. When the sixpence a day which was allowed the French prisoners at Edinburgh and elsewhere, was thought insufficient to maintain them on account of the diminution it sustained before it came to their hands by sub-contracts, &c., a collection of £10,000 was generously made for them. In general prisoners of war are now as well treated as other people.

In the same manner cartel treaties, by which soldiers and sailors are valued at so much, and exchanged at the end of every campaign, the nation which has lost most prisoners paying the balance, is an evidence of our refinement in humanity2. In the late war indeed, we refused to enter into any such treaty with France for sailors, and by this wise regulation soon unmanned their navy, as we took a great many more than they3. It was the want of humanity Edition: current; Page: [272] no doubt 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, and will run no great risk before they do so1.

This superior degree of humanity was introduced during the time of Popery. We never find it among the Greeks and Romans, notwithstanding all their attainments. The Pope was considered as the common father of Christendom, the clergy were under his subjection, and he had intercourse by his legates with all the courts of Europe. By this they were more nearly connected, and he obliged them to treat one another with more humanity. The Holy War too, which at that time was undertaken by most of the princes in Europe, made them turn their arms against all those of a different religion, who they thought deserved to be treated in the most cruel manner, but when they came to be engaged in a war among themselves, as they had all been on one side in that common cause, and as they thought that Christians should not be treated in the same manner with infidels, a greater degree of humanity was introduced. From these causes, moderns behave differently from the ancients with regard to the persons of prisoners.

It is more from motives of policy than humanity that the effects of enemies are secured. When a French army invades Germany, the general makes a law that all the people who will live quietly, and do not rise against him, shall be secure in their persons and possessions, and he will punish a soldier as severely for injuring the peasants of his enemy’s country as those of his own. But this is not the case in a sea war. An admiral seizes and plunders Edition: current; Page: [273] all the merchant ships he can get. Many of the merchants have done as little harm as the peasants; why then this distinction? It is the interest of the general not to rob the peasants, because it would be difficult to march an army carrying all its provisions through the country of an enemy. But by engaging them to stay he is supplied without any other expedient. By this means war is so far from being a disadvantage in a well cultivated country, that many get rich by it. When the Netherlands is the seat of war all the peasants grow rich, for they pay no rent when the enemy are in the country, and provisions sell at a high rate. This is indeed at the expense of the landlords and better sort of people, who are generally ruined on such occasions. This is so much the case that all the poor people who are abroad, whenever they hear of a war, will not stay from their native country. It is quite otherways in a sea war. Every ship carries its own provisions, and has no dependence for them upon the ships which it meets.

Another cause of modern refinement is that courtesy, or rather gallantry, which takes place between hostile nations, by which even ambassadors are kept at their several courts. Anciently it was the greatest gallantry to kill the general of an army1, but nothing could make a person more infamous at present than such a practice. When the king of France in person besieged a certain castle, the governor sent to know in what part of the camp the king lodged, that he might not cannonade it2. The king of Prussia indeed did not grant the princes of Saxony this request, when they Edition: current; Page: [274] informed him where the royal tent stood, but this was because he was assured that the chief magazine was there. Now if there be any in a nation who have injured more than others, they are the king and generals. How comes it then that it is not now thought lawful to kill them as well as formerly? The plain reason is that monarchies, whose interest it always is to show respect to those in authority, set the example at present, but republics, whose interest lies in adopting the opposite maxim, formerly led the fashion1.

The same policy which makes us not so apt to go to war makes us also more favourable than formerly, after an entire conquest. Anciently an enemy forfeited all his possessions, and was disposed of at the pleasure of the conquerors. It was on this account that the Romans had often to people a country anew, and sent out colonies2. It is not so now, a conquered country in a manner only changes masters, they may be subjected to new taxes and other regulations, but need no new people. The conqueror generally allows them the possession of their religion and laws, which is a practice much better than the ancient. Modern armies too, are less irritated at one another, because fire arms keep them at a greater distance3. When they always fought sword in hand, their rage and fury were raised to the highest pitch, and as they were mixed with one another the slaughter was vastly greater.