ally in arms against us, and cannot be reduced into our power by any other means. But if an army, or any small parties of an army, come into the territories of the enemy, notwithstanding they are at liberty to treat the inhabitants, who are not in arms, as enemies, yet they have not a general liberty to kill them. The plain reason, why they have not this general liberty, is, because the death of the inhabitants, who are not in arms, is not necessary for obtaining the just ends of war: and all harm, which exceeds what is necessary, is causeless harm. Even they, who are in arms, whether they are the standing armed force of the hostile nation, or any of the other members of it, who arm themselves occasionally, cannot lawfully be killed, if they quit their arms, and surrender their persons. It may be necessary, when they are thus in our power, to guard against any future opposition, that they might make to us, by taking their arms from them; or by compelling them to give security, that they will not bear arms against us for a certain time, or during the continuance of the present war; or by making them prisoners. But if their life can be spared, without defeating the just ends of war, we have no right to take it away. In the siege of a town, many of the inhabitants, who are not in arms, may happen to be killed. This is such a chance of war, as the law of nature will excuse. For if the act of besieging the town is lawful, the accidental conse quences, which follow from taking the necessary steps to carry on this act effectually, are not chargeable upon the besiegers. The inhabitants, as they are members of the adverse nation, may be treated as enemies: and though the law of nature would forbid this harsher kind of hostile treatment, if there was an opportunity of obtaining our lawful purpose without it; yet where it was not principally designed, and was made necessary by accident, this law does not condemn it.

The exceptions to this rule of not killing those persons, who never were in arms at all, or who, though they have been in arms, have surrendered themselves, are very few. If they are considered as members of the nation, with which we are at war, nothing more is necessary in the first instance, than to get them into our power. The law of nature, therefore, will not allow us to go farther. But if they, whom we thus get into our power, have been guilty of any previous crime, for which they deserve death, this law does not forbid us to inflict this punishment, any more than if they and we were members of no society at all, but were still in the original state of nature.

The obstinacy of holding out long in a siege is not one of these crimes: for a discharge of their duty towards their own nation, is not, in its own nature, a crime against the other. There might, perhaps, be some advantage in putting a garrison to the sword for holding out long: as such an example might be a means to deter others from giving the besiegers the same trouble. But neither this, nor any other motive of mere utility, will render it just to take away the lives of those, who are in our power, and have not deserved to lose them. Neither is retaliation a justifiable cause for killing prisoners of war: though our adversaries should have killed the prisoners whom they have taken from us, this will not justify us in killing the prisoners, whom we have taken from them. The law of nature allows of retaliation, only

Grot. Lib. III Cap. XI. § IX, X. XII.

† Grot. Ibid. § XVI.

where they, who have done harm, are made to suffer as much harm as they have done. But to kill such prisoners of war as are in our power, because the nation, to which they belong, has treated our countrymen in this manner, would be to do harm to one person, because harm had been done by another. An injury, which is done by a nation, does, indeed, communicate itself to all the members of that nation; and such a communication of guilt is all that can be pleaded for the retaliation, of which we have been speaking. But *Grotius very truly replies here, that to punish captives or prisoners of war in this manner, would be to punish them in what is their own as individuals: whereas the national guilt can only be communicated to them, as they are members of the offending nation: and, consequently, the proper punishment of it should only be inflicted on them as they are members of the offending nation, and not as they are individuals. If retaliation is not a just cause for killing prisoners of war, much less will it be a just cause for killing hostages. Those persons, who are put into our hands as hostages, become pledges by their own voluntary act for the performance of something, which their nation has engaged to do. But by their own voluntary act, they can pledge only what is in their own power to dispose of. They may give up their liberty as a security for the fidelity of their nation: but their lives, though they are their own to keep, are not their own to dispose of, and, consequently, cannot be given in pledge.

The reason why the act of holding out long in a siege is no personal crime in them who hold out, has already been hinted at. This reason will conclude more strongly in favour of those, who have only borne arms, and have given us no more than the common opposition of war. The members of a civil society are obliged, in general, and those members, that have engaged themselves in the military service of it, are obliged, in particular, to take up arms, and to fight for it, at the command of the constitutional governors, in the defence and support of its rights, against its enemies from without. There is no crime in entering into the social compact, from whence the general obligation to bear arms for these purposes is derived. This compact, as it only binds the several members of the society to pursue the ends of civil union, is innocent in respect of the rest of mankind. And if there is no crime in this compact, which would bind all the members alike to discharge the duties of war, there can be no crime in a particular compact, by which some of the members undertake to discharge the same duties, instead of the rest. The consent, by which the subjects in general, or the soldiery in particular, lay themselves under these obligations, is the only act that can, by the law of nations, be looked upon as a personal act of the individuals who bear arms. In consequence of the general consent of mankind to consider nations as collective persons, whatsoever is done by the members of a nation, at the command of the public, or of the constitutional governors, who speak the sense of the public, is the act of the nation: and if the act is unjust, the guilt, in the view of the law of nations, is chargeable upon the nation, and not upon the individual members. I am now speaking, not of what will justify a man, who bears arms in war, to his own conscience, but of what will justify him to the nation, against which he fights, at the com

* Grot. Lib. III. Cap. XI. § XVI.

mand of the nation, to which he belongs. If the war is plainly and notoriously unjust, the obligation of the social compact, or of any other compact, will not justify him to his own conscience: because no compact whatsoever can bind him to do, or excuse him in doing, what the law of nature forbids. And if he was to fight as an independent individual, at his own choice, and upon his own motion; those, against whom he fights, might look upon the act of bearing arms against them in such a war as a personal crime. But when they, with all mankind, have agreed to consider the several members of a civil society only as parts of a collective person, that act under the direction of the common will of such collective person; however inexcusable a man, who fights against them, might be, in the view of his own conscience, or of the law of nature, which considers him as an individual, they cannot, consistently with this agreement; that is, they cannot, consistently with the law of nations, charge him with having been guilty of a personal crime, merely upon account of his having fought against them.

Thus far, therefore, I agree with Grotius, that some acts are lawful in war by the law of nations, which, by the law of nature, would be unlawful; and that this lawfulness consists only in impunity, or that it is only external in the view of mankind, and not internal in the view of conscience. But though I agree with him thus far, I differ from him in three particulars. First, this impunity does not arise from a law of nations, which is purely positive, but from the positive consent of mankind to apply the law of nature to civil societies, as if each society was a distinct moral person, made up of its several members. For though the law of nations does, in this instance, grant impunity, where the law of nature would not grant it; yet this difference arises only from the difference of the persons, to which the same law is applied. The law of nature applied to individual persons would make it a crime, not only in the view of conscience, but likewise in the view of mankind, to fight in an unjust war. But when mankind have agreed to keep individuals out of sight, as it were, and to apply this law only to collec tive persons; they cannot, consistently with this agreement, charge the parts of these collective persons with any separate guilt, for what is done under the direction of the common or collective will. Secondly, this impunity, for what is done in war, is confined to the acts of the separate members of civil societies, and does not extend to the corporate acts of the societies themselves. How far, what nations do collectively, obtains impunity by the law of nations, will appear hereafter. But we may observe here, that, if this law is nothing else but the law of nature applied to the collective persons of civil societies, no acts, which could not be done by individual persons, consistently with the law of nature, can be done by collective persons, consistently with the law of nations. Thirdly, Grotius confines the external lawfulness of what is done in a war, which is internally unjust, to solemn wars only: whereas, this external lawfulness, in respect of the members of a civil society, extends to public wars of the imperfect sort, to acts of reprisals, or to other acts of hostility. By giving the name of public war to reprisals, or other acts of hostility, which fall short of being solemn wars, I suppose the reprisals to be made, or the acts of hostility to be committed, by the authority of a nation, though it has not solemnly declared war. For if the members of the nation make reprisals, or commit acts of

hostility, without being thus authorized, they are not under the protection of the law of nations: as they act separately, by their own will, so they are separately accountable to the nation against which they act.

Prisoners of war are, indeed, sometimes killed; but this is no otherwise justifiable, than as it is made necessary either by themselves, if they make use of force against those who have taken them, or by others who make use of force in their behalf, and render it impossible to keep them. And as we may collect from the reason of the thing, so it likewise appears from common opinion, that nothing but the strongest necessity will justify such an act: for the civilized and thinking part of mankind will hardly be persuaded not to condemn it, till they see the absolute necessity of it.

The same general rule by which we are to guide ourselves in judging how far it is lawful to destroy the persons of our enemies in a public war, is the rule by which we must be guided in judging how far it is lawful to ravage or to waste their country. If this is necessary to be done, in order to bring about the just ends of war, it lawfully may be done; but not otherwise. Thus, if the progress of an enemy cannot otherwise be stopped, we may destroy the forage or other provisions that are in the way: or if towns or villages would afford them such posts as would give them a considerable advantage against us, and we cannot otherwise prevent them from gaining these posts, we may destroy such towns or villages. To waste a country, unless for some such necessary reasons as these, is causeless harm.

Under the notion of wasting or ravaging a country, I do not include plundering it: this may possibly not be causeless harm; because they, who plunder it, may acquire the goods which they take from the enemy: and if the law of nature will give them property in the goods which are so taken, the same principle upon which such property is acquired, will justify the act of taking them.

I shall not detain the reader here with a particular inquiry how far fraud is lawful in war. The general principles, upon which questions of this sort are to be determined, have been stated already.

These rules, which are derived out of the law of nature, applied to the collective persons of civil societies, are represented by Grotius as temperaments, by which the law of nature qualifies and abates the rigour of a purely positive law of nations. He grants, that they are such rules as a nation must observe, if it regards what is intrinsically just; but contends, that there is a positive law of nations which allows a greater license, and gives an extrinsic justice to what is done in solemn wars, though these rules are exceeded. We have already seen, that there is no cause, or no legislative power, by which such a law could be produced or established; and may now inquire, whether the effects of such a law can be traced out in any extraordinary license, which is peculiar to solemn wars.

No evidence of such a law appears in the name of just war, which is usually given to wars of this sort, whether they are internally just or not. For the name of just war, as it is appropriated to solemn wars, without regarding the causes upon which they are moved, is not intended to denote any external justice, which a purely positive law of nations † See Book I. Chap. XIV. § III, IV.

*Grot. Lib. III. Cap. XII. § I.

allows promiscuously to all such wars; it is only intended to denote that such wars are perfect in their kind, or come up to the highest notion of a war of nations.

In the practice of nations, that are at war with one another, all rules, which arise out of the law of nature, are, indeed, sometimes exceeded. The slaughter, which the army of a nation makes amongst its enemies, is not always confined to those who are in arms, or to those whose lives cannot be spared consistently with its own safety. Sometimes no quar ter is given to such as surrender themselves, when it is not necessary to take away their lives. Sometimes prisoners of war are killed in cool blood, when there is no danger of their being rescued, or of their rising in arms against those who have taken them, and have them in their power. Sometimes, in what are called military executions, not only the inhabitants of an enemies' country, who are able to bear arms, though they never were in arms, are murdered; but the slaughter is extended to women and children. But though these and other enormities are practised in war, it is no consequence that there is any positive law of nations which makes them lawful.

One evidence which Grotius produces of such a law is, that, however criminal these practices are by the law of nature, they meet with no punishment amongst nations; and that this general license of transgressing the law of nature, in war, extends to all solemn wars whatsoever; even to such as are internally unjust, in which the law of nature is so far from allowing outrageous or unnecessary force, that it does not allow the use of any force at all. The use of any force in an unjust war, and the use of outrageous and unnecessary force in any war, is criminal by the law of nature; and neutral states, or states who are not concerned in the war, might, if this law was the rule by which nations are guided in their conduct towards one another, punish the offending nation for such criminal uses of force. But since, in solemn wars, these criminal uses of force obtain impunity; that is, since neutral states do not interpose to punish a nation that is guilty of them, Grotius concludes, that such wars, however unjust they may be, either in their internal causes, or in the manner of carrying them on, have an external justice in the view of nations, which can only be given them by some purely positive law. The principal point to be considered here is, whether this is only an impunity in fact, or whether it is an impunity of right. Though neutral states do not, in fact, interpose to punish such uses of force in war as are internally criminal by the law of nature, it is no consequence, that they have no right to interpose. There is a prudential reason which will operate in this matter as universally as a law. Neutral states cannot punish the injustice of what has been done in war, without engaging themselves in a war with the state which they undertake to punish. And an impunity, which thus arises in fact, from the regard that every neutral state has to its own safety, is no evidence of a positive law, which has given an external rectitude to whatever is done in solemn war, and has established a right to such impunity. Grotius, when he mentions this prudential reason, considers it, not as the immediate cause which restrains neutral states from punishing what has been done unjustly in a solemn war, but as a general motive,

Grot. Lib. III. Cap. IV. § IV.