which induced all nations to lay themselves under such a restraint by a positive law. If the regard which neutral states have to their own safety, is the immediate cause of this restraint, it is only a restraint in fact; they are at liberty to judge for themselves, how far it is consistent with their own safety, or conducive to their own interest, to intermeddle in the quarrels of other states; and are farther at liberty to act upon this judgment, either to intermeddle or not, as they think proper. But if it is only a general motive which induced all nations to establish such a restraint by a positive law, they will then be under a restraint of right; and whatever their own interest may either allow of or recommend, they will be obliged to overlook whatever is done by other nations in a solemn war, whether it is internally just or not.

Whilst a war is depending, which either is naturally unjust in the causes of it, or is carried on by such outrageous and unnecessary acts of violence as are naturally unjust, there can be no doubt about the right of a neutral state to declare to the wrong doers, that it will join with the sufferers, or about its right to put this declaration in execution; unless the unjust war is put an end to, or the unjust means of carrying it on are corrected. The civil governors of a neutral society may, indeed, in one respect, be said to be restrained of right, by what I have here called a prudential reason. They are obliged, of right, not to hazard the safety of their own society in the quarrel of another. But this restraint arises naturally from social union, and from the trust which is committed to such governors, and not from any positive law of nations; it is an obligation which regards their own society only, and has no relation at all to any other civil society whatsoever.

I am aware, that the interposition of a neutral state, whilst a war subsists, to check what is done in it against the rules of natural justice, is capable of being considered rather as a defence of the sufferers, than as a punishment of the offenders. But it is not worth the while to debate, which of these two is the true nature and primary intention of such an interposition. For if we allow it to be only a defence of the sufferers, it will be an evidence that there is no positive law of nations, which gives an external justice to whatever is done in a solemn war. If there was any such law, nothing which a nation suffers in a solemn war, could be externally unjust in the view of other nations; and, consequently, no neutral state could, consistently with such a law, interpose to defend the sufferers. Since no person can lawfully be defended against what he suffers justly, it would be as contrary to the notion of this external justice, to defend those who suffer in a solemn war what is inconsistent with natural or internal justice, as to punish those, who, in such a war, do what is inconsistent with it.

After a war is ended by the consent of the parties who were concerned in it, there is some appearance of a law which restrains neutral states from taking notice of what has been unjustly done on either side whilst the war lasted. It would, in the common opinion of mankind, be thought no very justifiable reason, why one nation should make war upon another, that the latter had done something unjustly in some war with a third nation, which is now at an end, and in which the former, whilst it lasted, was no way interested. But there is no occasion to have recourse here to a positive law of nations. The law of nature favours peace; and will, therefore, readily presume, that no injustice has

been done, or that all injustice which has been done, is made amends for, where the parties, who were concerned in a quarrel, have adjusted the matter that was in dispute between them, to their own satisfaction. Grotius mentions another reason, why neutral states have no right, after a war is over, to take notice of any natural injustice that has been done in it on either side. But it is a reason, which is founded in nature, and will operate as a law without the aid of positive institution. When the parties in a war are reconciled to one another, so that no complaint is made on either side, neutral states cannot have such evidence of what has been unjustly done in the war, as will warrant them to inflict punishment for what has been so done. The same hurt which would be causeless and unjust by the law of nature, if it was done even in war, designedly or out of choice, is allowed of by this law, if it was accidental or necessary. Without a fuller and clearer insight, therefore, than neutral nations can have into the causes and occasions of what has been done in a war, after the parties in it are agreed, they cannot determine whether it has criminally exceeded what the law of nature allows of, and is punishable or not.

But whether the impunity for what a nation does in war, is an impu nity in right or only in fact, it does not seem, in the practice of mankind, to be peculiar to solemn wars. For it is as unusual for neutral states, which are not concerned in a quarrel between two nations, to punish either of them for what has been done, when the war, which they make upon one another, is imperfect, as when it is begun with the solemnity of a declaration.

The second evidence that Grotius produces, of a purely positive law of nations, is, that, in solemn wars, some practices are not allowable, which the law of nature does not forbid. The law of nature, where it allows us to take away the life of any person, prescribes, says Grotius, no particular manner of killing him, but leaves it indifferent, whether we kill him by some open means, which he may be aware of, or by the secret means of poison or of assassination. But the law of nations, at least the law of more civilized nations, forbids the use of poison against an enemy in solemn war. An observation, which our author here makes, upon the permission of the use of poison in the law of nature, will help to explain this matter. It is generous to give any person, whose life we have a right to take away, an opportunity of defending himself: poisoning, therefore, which gives him no such opportunity, is a less generous way of killing him, than an open attack. However, if he has deserved death, the favour of giving him an opportunity of de fending himself, is not due to him in strict justice. What Grotius here says about deserving death, wants to be explained. A criminal, who is by the civil law justly sentenced to die, is properly said to deserve death: and as the law of nature does not prescribe, so there is not, I presume, any natural principle of generosity which recommends one sort of death rather than another; except only that humanity suggests, and the law of nature requires, this punishment to be inflicted without any unnecessary torture. In like manner, an individual may, in a state of natu ral equality, have committed such a crime as to deserve death for it and where he has thus deserved to die, they, who undertake to inflict

• Grot. Lib. III. Cap. IV. § XV, XVI.

the proper punishment upon him, may, consistently with strict justice and with generosity too, put him to death in any manner, provided they observe the same caution about not giving him unnecessary torture. But in a public war, the soldiers, against whom we fight, are not guilty of any capital crime in what they do, and deserve death no otherwise than as they stand in the way of the execution of our right, and cannot be put out of the way, or be brought into our power without it. And thus, notwithstanding it is indifferent by the law of nature, in what manner a person, who has deserved death, is killed; whether by poison or by open force, it does not follow, that they, who fight against us in public war, may lawfully be killed in any manner. In fighting upon the authority of their state, they commit no capital crime, and do not properly deserve death. Humanity, therefore, requires, that we should not put them to death at all, if we can obtain the lawful purposes of war without it; and generosity recommends it to us rather to run some hazard of our own lives, than to take away theirs unnecessarily. But by poisoning them, we put them to death at all events, whether it is necessary or not; that is, we take away their lives, without trying whether we cannot spare them, and yet put such a stop to their opposition, as to obtain the lawful purposes of war. From hence, likewise, we may understand, why the use of poisoned weapons should be more inconsistent with the law of nations, than the use of other weapons; not because there is any purely positive law of nations, which forbids the use of such weapons, but because it is forbidden by the natural law of humanity and generosity: for other weapons, though they may probably bring death, do not bring it so certainly as these, and leave even the wounded a chance of escaping with life.

In the business of assassinating the commanders of an army, or other leading persons of a nation, with which we are at war, we may distinguish with Grotius between the persons who are employed in it, whether they are subjects of our own nation, or of the other. If they are our own subjects, the act cannot be defended upon his principle; which is, that we may lawfully kill an enemy wherever we find him; and that it makes no difference, as to the lawfulness of our act, whether it is done by many or by few; by a whole army, or by a single person. But the first part of this principle is not true: the only right that we have in public war, over the persons of our enemies, is to lay them under such restraints as are necessary to prevent them from opposing us: since, therefore, in order to prevent such opposition, it is not necessary to kill any, who are not in arms, because they are in our power, and we can restrain them by other means, the consequence is, that we have no right to kill an enemy, wherever we find him, unless he is in arms and resists us by force. Thus the lawfulness of assassination, in public war, will, at least, be confined to those who are in arms; and cannot be extended to any other persons of the adverse nation. In respect of those who are in arms, such as the general of an army, or some other principal commanders in it, though the persons whom we employ, are members of our own nation, all that can be said to defend assassination, in point of generosity, is, that such commanders either are, or ought to be, upon their guard against attempts of this sort; and when they are Grot. Lib. III. Cap. IV. § XVIII.

engaged in opposing force to our lawful demand, there can be no great want of generosity in taking away their lives by such means, as it is their particular duty to be aware of, and to guard against. But if we employ their own people, there is nothing to be said in excuse for the act: it is killing of them privately, in such a manner as they cannot be supposed to guard against; and may, in this respect, as to the want of humanity and generosity, be resembled to poisoning: and as the act is unjust in the persons who are employed, this injustice will be communicated to us, who make ourselves parties in it by employing them. Property how ac- XVI. In a war, which is internally just, as a nation quired in war. may take the persons, so, likewise, it may seize upon the goods of the enemies, either moveable or immoveable, as far as such seizure is a necessary means of bringing them to do what is right. But what is seized only for this purpose, does not become the property of the captors: the possession is just, till the purpose for which the goods were taken is answered; but as soon as the claims of the injured nation are satisfied, the justice of the possession is at an end.

There are, however, three ways by which a nation in a just war may acquire property in the goods which it takes from its enemies. First, a nation that has been injured, has a right to reparation of damages. Reparation is made according to the law of nature; not only by recovering the thing which we are unjustly deprived of, but, likewise, where the very thing cannot be had, by recovering an equivalent out of the goods of the person who has deprived us of it. And, by the law of nations, this right to obtain an equivalent, extends to the goods of all who are members of the nation, that has done the injury; not *because the goods of private subjects are, by any purely positive law, made pledges to all the world for the good behaviour of the nation, or of its constitutional governors; but because, by the positive consent of all mankind, the nation, though it consists of many individuals, is con sidered as one collective person; and, in consequence of this general consent, all the members of this collective body are deemed parties in any injury which the body does, as far as this injury produces a claim to reparation of damages in those against whom it is committed. Ifa nation makes war to recover reparation of any damages that have been done to it, this claim to such goods as are taken in the war, takes place from the beginning of the war, to the extent of these damages. But if the enemy begins a war causelessly, and the nation which defends itself, has suffered no injury from the enemy before the war began, this claim does not take place from the beginning; because the nation can have no right to an equivalent, where it has sustained no damage. However, this claim, though it did not begin with the war, will arise in the progress of it: for the war itself is an injury; and, consequently, the nation, against which it is made, will have a right to reparation for all the damages which are done to it in the war.

Secondly, a nation has a right to be paid the expenses that it makes in a just war. These expenses are, indeed, so many additional dama ges: for whatever the nation is forced to expend in recovering its right, is a loss which is occasioned by the fault of the enemy who withholds that right. As the nation, therefore, acquires property in the goods Ibid. Cap. XIII. § II, III.

*Grot. Lib. III. Cap. II. § II.

which it takes from the enemy, to the amount of the original damages that occasion the war, and of the fresh damages that are done in the war, so, upon the same principle, it acquires property in what it takes as an equivalent for the current expenses that are made in carrying on the war.

Thirdly, a nation which has committed a crime, may be punished in the same manner with an individual, in the liberty of nature, by being deprived of its goods. But whilst the offending nation thus loses its goods, the nation that takes them, will acquire property in them no otherwise, than either by being the first occupants, or by receiving the goods as a ransom, by which the offending nation redeems itself from some other punishment. Grotius confines this way of acquiring property, in war, to such goods only as belong either to the collective body of the state, or to the criminal members of it. And this restriction is a very proper one: for though an injury, which is done by a nation, is communicated to all the members of it, as far as this injury produces an obligation to repair damages, yet the guilt of it, as it implies a disposition to do harm, is confined to the collective person of the nation, and to those particular members of it, who have made it their own act by their immediate and direct consent.

Grotius agrees, that these are the proper measures of what can be acquired, in war, by the law of nature. But he contends, at the same time, that, in this instance, there are plain traces of a positive law of nations, which extend the right of war. For, in the approved practice of nations, or, at least, in such practice as is not condemned, whatever is taken in war is the property of the captors, though it is more than an equivalent for any damages that have been done, or any expenses that have been made; and this claim of property is not confined to such wars as are internally just, but is extended to all solemn wars whatsoever, whether they are internally just or not.

But here we are apt to mistake a right, which arises from the consent of a nation, whose goods we have taken in war, for a right, which a positive law of nations gives us to those goods, merely because we have taken them. Though we had no just claim to them from the first, yet, when we make peace with the nation, from which they were taken, if they, or an equivalent for them, should not be demanded, they become our own by the tacit consent of that nation, without the aid of any purely positive law of nations. The surest way of trying whether it is the claim of war, or the claim of a tacit consent in concluding a peace, which gives us property in all such goods as are taken in war, is to inquire what sort of a right we have to them, before peace is concluded. There is no law of nations, which forbids our enemies to continue a war, when no other cause of dispute remains, besides our detention of such goods, as we have taken in the war, beyond an equivalent for damages and expenses. As the law of nature will allow this to be a just cause of continuing a war, so there is no practice of nations, and no general opinion of mankind, that determines otherwise. But if any law of nations had given us property in such goods, the same law must necessarily condemn the adverse nation for continuing a war, merely because we would not give them up: for the design of such a war would

Grot. Lib. III. Cap. VI. § II.