fect the claim of the proprietors. It would affect their claim, if they were responsible to the enemy: because, in respect of the enemy, the nation could not give them absolute property, where its own property was precarious. But as the nation is responsible to the enemy, and they are responsible only to the nation, the grant, which the nation has made, will hold good against itself, though such grant was made in its own wrong.

XVII. Since all the members of a nation, against what prevents which a just war is made, are bound to repair the dama- prisoners of war ges that gave occasion to the war, or that are done in it; from being slaves. and, likewise, to make satisfaction for the expenses of carrying it on, the law of nature will allow those, who are prisoners, to be made slaves by the nation which takes them; that so their labour, or the price for which they are sold, may discharge these demands. Thus the acquisition of prisoners of war; or, rather, of their personal labour, is made in the same manner, and is subject to the same rules with the acquisition of the goods of the enemy. Despotism, however, when it is thus acquired, cannot include a right in the masters or owners of such prisoners of war, as are made slaves, to dispose of their lives at pleasure. The captors have a right to every valuable consideration that the prisoners can make over to them, towards repairing the public damages, or returning the public expenses: but the death of the slave, whilst it is a loss to him, brings no profit to the nation that took him prisoner. And if the nation had no right to take away his life, no private owner, who claims under the nation, can have such a right. Grotius here follows the common opinion, that, as the law of nations permits prisoners of war to be killed, so the same law has introduced a right of making them slaves, that the captors, in view to the benefit arising from the labour or the sale of their prisoners, might be engaged to spare their lives. In this account of the means by which prisoners of war become slaves, their slavery begins from the right which the captors have over their lives. The reader, therefore, may, perhaps, imagine, that the same right continues in their masters, after they become slaves. But we have already shown, that the principle, upon which Grotius here sets out, is not universally true. A nation has not, even in a just war, a general right to kill the prisoners that it takes. The only general right that it has over them, is the same that it has over all the members of the adverse society: those members, who are taken prisoners, are bound, as all the other members are, to repair the damages which it has sustained, and to return the expenses which it has made. Where it is inconsistent with the security of the captors to save the prisoners, they may lawfully kill them. But it is impossible, in the nature of the thing, that any question should arise, whether, if any prisoners have been reserved for slavery in such an exigency, the right, which the captors had over their lives, whilst they were prisoners, does not continue after they are made slaves? The case implies that the prisoners cannot be saved: for if they could be saved, the captors would have no right to kill them. We must either suppose, on the one hand, that the lives of the prisoners can be saved, consistently with the safety of the captors, and then the captors will have no right over their lives, from the first; * Grot. Lib. III. Cap. VII. § V.

and, consequently, can have no such right, after they are reduced to a state of slavery; or else we must suppose that the prisoners cannot be saved, consistently with the safety of the captors; and then, though the captors have a right to take away their lives, this right cannot continue after such prisoners are become slaves; because they must all be destroyed, and, consequently, none will be left to make slaves of. The case will be the same, if we suppose that an army has taken so great a number of prisoners, that it cannot save them all consistently with its own safety; and that it, therefore, kills some, and saves as many as it can. We cannot ask, whether the nation, to which the army belongs, has a right over the lives of those who are killed, when they become slaves? because, as they are killed, they never can become slaves: and as to the rest, whose lives could be preserved, consistently with the safety of the army, neither the nation, nor its army, had, from the first, any right over their lives; and can, therefore, have no such right after they come into a state of slavery. If there are any particular prisoners who have committed such a personal crime against the nation, which takes them, as deserves death, though the general offence of the society, to which they belong, would give it no right to take away their lives, yet a crime of this sort may give it such a right. But if the nation, instead of killing these prisoners, makes slaves of them, whatever right over their lives it had before, by the act of making them slaves, it parts with this right: for, by this act, it consents to take their labour in exchange for their lives.

This is the general law concerning prisoners of war. In Europe, indeed, prisoners of war are not slaves. But their slavery is prevented by the law of each particular nation; and not by any law, which all the nations of Europe have agreed to establish amongst themselves, as the common rule of their conduct towards one another. The civil law of each particular nation, does not allow of slavery; unless, perhaps, where a subject of its own has committed a crime, for which this law condemns him to labour in the mines, or in the gallies, or in the foreign plantations. And if the civil law of any nation does not allow of sla very, prisoners of war, who are taken by that nation, cannot be made slaves. There are, however, even in Europe, some remains of the right which slavery produces over the persons of prisoners of war. They are exempted from the labour and drudgery of slaves; but the nation, which takes them, considers itself as having some right to their persons; and, accordingly, sells their liberty at the price of a ransom, or else barters them away in exchange for its own subjects, who have been taken prisoners in war by their nation. This right would continue even after peace is concluded between the two nations, if, in the treaty of peace, there was no express stipulation for a release of prisoners. But as no profit is to be had from their labour, and it would be expensive to keep them, there is always a prudential reason for releasing such of them, at least, as cannot pay their ransom, though no compact has been made about them. Effect of a decla- VIII. After what has been said about public war, the effects of a declaration of war may be easily understood. One effect of it is merely nominal. Though every contention, by force, is war; and every contention of two nations, by force, upon the authority of their respective supreme governors, in external matters, is

ration of war.

public war; yet, in the more common language, when we are speaking of the contentions of two nations, we call them reprisals, or acts of hostility; and do not give them the name of war, unless war has been declared. After war is declared, as we then call the contention of two nations, emphatically, war, so it is sometimes called solemn, and sometimes just war. But this title of just war is merely nominal; it imports, that a war, when it is declared, is perfectly public, and not that it has any peculiar sort of external justice, or that it produces any effects of right, by a purely positive law of nations, which other public wars will not produce, and much less that it is, of course, internally just.

The only real effect of a declaration of war is, that it makes the war a general one, or a war of one whole nation against another whole nation: whilst the imperfect sorts of war, such as reprisals, or acts of hostility, are partial, or are confined to particular persons, or things, or places. In a solemn war, all the members of one nation act against the other under a general commission; whereas, in public wars, which are not solemn, those members of one nation, who act against the other, act under particular commissions. I do not mean, that, when one nation has declared war against another, all the members of the former must necessarily be at liberty to act as they please against the latter. The nation, which has so declared war, has still authority over its own subjects, and may restrain them from acting against the other nation in any other manner than the public shall direct. So that, in consequence of such a restraint, none can act in the war, even though it has been declared, besides those who have particular orders or commissions for this purpose. But this restraint, and the legal necessity which follows from it, that they, who act, should have particular orders or commissions for what they do, arises not from the law of nations, or from the nature of the war, but from the civil authority of their own country. A declaration of war is, in its own nature, a general commission to all the members of the nation which has declared war, to act hostilely against all the members of the adverse nation. And all restraints that are laid upon this general commission, and make any particular orders or commissions necessary, come from positive and civil institution.

Grotius distinguishes here between what is commanded by the law of nature, what is matter of civil institution, and what is required by the law of nations. The law of nature, he says, when it is applied to individuals in a state of nature, will allow us to make use of force against them, to punish them for any crimes which they have committed, or to recover our own goods, which they have unjustly taken from us, or to defend ourselves against any injury which they are attempting to do us, though we give them no notice beforehand that we will make use of such force. But before we can justly seize upon any of their goods, as an equivalent for what they have taken from us, the law of nature requires that we should make a demand of our own goods. For our primary right is a right to our own goods: the right to an equivalent is only a secondary one, and does not take place till the other is finally defeated. There is a farther reason against seizing upon the goods of a nation, or of some of the members of it, upon account of any damages which we have sustained from others of its members, till we

Grot. Lib. III. Cap. III. § VI, VII.

have demanded of the nation to do us justice against its subjects. For, without a refusal to comply with such a demand, the law of nature will not make the nation a party in the offence of its members; and, consequently, will not justify us in making war upon it. But Grotius seems here to confound two things, which are widely different from one another. I allow, that the law of nature requires such a demand as this to be made, before it will justify a public war: but this is no evidence that it likewise requires a declaration of war: because, a declaration of war is not the same thing with a demand to have justice done us, which demand is made in order to avoid a war. These two acts may be done at one and the same time: as when we declare war, conditionally, unless our demands are satisfied: but still they are different acts. The declaration of war is void; that is, the war does not take place, notwithstanding the declaration, if the demand produces its proper effect, by obtaining reparation for the damages that we have sustained. Grotius allows here, that the law of nature does not require a declaration of war to be made, in order to prevent all appearance of deceit, or of clandestine management, and to give the adverse nation an opportunity of being upon its guard. This is not matter of strict right, however it may be matter of bravery, or of what goes under the notion of honour: as some nations have, upon the same principle, given notice to the enemy beforehand of the day and place of battle.

The formalities of declaring war belong to the civil law: each nation determines for itself by what officers, in what places, and with what ceremonies, a declaration of war shall be made.

Grotius derives the principal obligation to declare war, from a purely positive law of nations. This obligation, as he explains it, is derived from an external purpose, and not from any internal reason of natural justice. A war, he says, unless it is declared, does not give impunity to the parties concerned in it, and does not give one of the parties property in what it takes from the other. But if, by the parties concerned in the war, we mean the nations, neither the reason of the thing, nor the common practice of nations will give them any other impunity, or allow them any otherwise to obtain property in what is taken, where war has been declared, than in the less solemn kinds of public war, which are made without a previous declaration. Indeed, in solemn war, the individual members of a nation, which has declared war, are not punishable by the adverse nation for what they do: because the guilt of their actions is chargeable upon the nation which directs and authorizes them to act. But even this effect may be produced, though not in respect of all the members of the nation, yet in respect of some of them, without a declaration of war. For, in the less solemn kinds of war, what the members do, who act under the particular direction and authority of their nation, is, by the law of nations, no personal crime in them: they cannot, therefore, be punished, consistently with this law, for any act in which it considers them only as the instruments, and the nation as the agent.

Law of nations, in

respect of states that are neutral in

a war.

XIX. When two or more nations are at war with one another, the principal questions relating to neutral states; that is, to such states as are not parties in the war, are, *first, what these neutral states may do in re* Grot. Lib. III. Cap. XVII. § I. III.

spect of either of the nations, which are at war, without departing from their neutrality; and secondly, what conduct is allowable in the nations, which are at war, towards the neutral states.

The general rule, in the first of these questions is, that a neutral state is not at liberty to give any assistance to either of the states that are at war. This rule, when it is thus generally expressed, is not so to be understood, as if it was naturally unjust for a state, which is for some time neutral in a war, to join itself in the progress of the war to one of the contending parties. When we say, in general, that a neutral state is not at liberty to assist either party; we only mean, that it cannot assist either, consistently with its neutrality. But if we distinguish the notion of neutrality into general and particular; the rule, in a particular neutrality, will bear, or rather will require, a different construction. The neutrality of a nation is general, where it is not, in fact, a party in a war. The neutrality is particular, where the nation has bound itself by compact, to one or both the contending nations not to make itself a party. If the neutrality is only general; it is only inconsistent with such neutrality to give assistance to either of the contending nations; that is, the state, by giving its assistance to either of them, ceases to be a neutral state, and may be treated by the other of them as a party in the war. If the neutrality is particular, and a compact of neutrality has been made with both; it will then be a breach of compact, and consequently an injury against one of them, to give assistance to the other. Or if the compact is made with only one of them, the giving of such assistance to the other will be a breach of this compact: but to assist the nation, with which this compact is made, will only be a simple breach of neutrality in respect of the other.

The reason of this rule arises out of the nature of things, and shows it to be a rule of the law of nature, which may be applied alike either to individual persons, in a state of equality, or to the collective persons of civil societies. For the notion of neutrality in a war, whether the war is private or public, consists in avoiding to take part with either of the persons, who are engaged in it. But to give assistance to one of them, is to take part with that person, to whom such assistance is given, and, consequently, is inconsistent with the notion of neutrality.

The neutrality of a state abridges its liberty of trading with either of the contending nations, but does not wholly destroy this liberty. *Nothing is inconsistent with the notion of its neutrality, besides assisting one of them in the war. It may, therefore, supply either of them with all goods, as if they were at peace with one another, except such goods, as will help the party that is supplied with them, to carry on the war more effectually. Goods of this sort are called contraband. This word is sometimes used in another sense, and means all such goods, as a nation will not allow to be exported out of its territories, or to be imported into them. But this is not the sense in which it is commonly used in the question that is now before us. The notion of contraband goods is of some latitude: so that it is not easy precisely to determine what are, and what are not, of this sort. All warlike stores are undoubtedly contraband. But still the question returns, what are

Grot. Lib. III. Cap. I. § V.