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The Law of Nations or the Principles of Natural Law (1758)

Emmerich de Vattel

BOOK 3, CHAPTER 15
Of the Right of Private Persons in War

§ 223. Subjects cannot commit hostilities without the sovereign’s order.
THE right of making war, as we have shown in the first chapter of this book, solely belongs to the sovereign power, which not only decides whether it be proper to undertake the war, and to declare it, but likewise directs all its operations, as circumstances of the utmost importance to the safety of the state. Subjects, therefore, cannot of themselves take any steps in this affair; nor are they allowed to commit any act of hostility without orders from their sovereign. Be it understood, however, that under the head of “hostilities,” we do not mean to include self-defense. A subject may repel the violence of a fellow-citizen when the magistrate’s assistance is not at hand; and with much greater reason may he defend himself against the unexpected attacks of foreigners.

§ 224. That order may be general or particular.
The sovereign’s order, which commands acts of hostility, and gives a right to commit them, is either general or particular. The declaration of war, which enjoins the subjects at large to attack the enemy’s subjects, implies a general order. The generals, officers, soldiers, privateers-men, and partisans, being all commissioned by the sovereign, make war by virtue of a particular order.

§ 225. Source of the necessity of such an order.
But, though an order from the sovereign be necessary to authorize the subjects to make war, that necessity wholly results from the laws essential to every political society, and not from any obligation relative to the enemy. For, when one nation takes up arms against another, she from that moment declares herself an enemy to all the individuals of the latter, and authorizes them to treat her as such. What right could she have in that case to complain of any acts of hostility committed against her by private persons without orders from their superiors? The rule, therefore, of which we here speak, relates rather to public law in general, than to the law of nations properly so called, or to the principles of the reciprocal obligations of nations.

§ 226. Why the law of nations should have adopted this rule.
If we confine our views to the law of nations, considered in itself, — when once two nations are engaged in war, all the subjects of the one may commit hostilities against those of the other, and do them all the mischief authorized by the state of war. But, should two nations thus encounter each other with the collective weight of their whole force, the war would become much more bloody and destructive, and could hardly be terminated otherwise than by the utter extinction of one of the parties. The examples of ancient wars abundantly prove the truth of this assertion to any man who will for a moment recall to mind the first wars waged by Rome against the popular republics by which she was surrounded. It is therefore with good reason that the contrary practice has grown into a custom with the nations of Europe, — at least with those that keep up regular standing armies or bodies of militia. The troops alone carry on the war, while the rest of the nation remain in peace. And the necessity of a special order to act is so thoroughly established, that, even after a declaration of war between two nations, if the peasants of themselves commit any hostilities, the enemy shows them no mercy, but hangs them up as he would so many robbers or banditti. The crews of private ships of war stand in the same predicament: a commission from their sovereign or admiral can alone, in case they are captured, insure them such treatment as is given to prisoners taken in regular warfare.

§ 227. Precise meaning of the order.
In declarations of war, however, the ancient form is still retained, by which the subjects in general are ordered, not only to break off all intercourse with the enemy,1 but also to attack him. Custom interprets this general order. It authorizes, indeed, and even obliges every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands; but it does not invite the subjects to undertake any offensive expedition without a commission or particular order.

§ 228. What private persons may undertake, presuming on the sovereign’s will.
There are occasions, however, when the subjects may reasonably suppose the sovereign’s will, and act in consequence of his tacit command. Thus, although the operations of war are by custom generally confined to the troops, if the inhabitants of a strong place, taken by the enemy, have not promised or sworn submission to him, and should find a favorable opportunity of surprising the garrison, and recovering the place for their sovereign, they may confidently presume that the prince will approve of this spirited enterprise. And where is the man that shall dare to censure it? It is true, indeed, that, if the townsmen miscarry in the attempt, they will experience very severe treatment from the enemy. But this does not prove the enterprise to be unjust, or contrary to the laws of war. The enemy makes use of his right, of the right of arms, which authorizes him to call in the aid of terror to a certain degree, in order that the subjects of the sovereign

with whom he is at war may not be willing to venture on such bold undertakings, the success of which might prove fatal to him. During the last war, the inhabitants of Genoa suddenly took up arms of their own accord, and drove the Austrians from the city: and the republic celebrates an annual commemoration of that event by which she recovered her liberty.

§ 229. Privateers.
Persons fitting out private ships to cruise against the enemy acquire the property of whatever captures they make, as a compensation for their disbursements, and for the risks they run: but they acquire it by grant from the sovereign, who issues out commissions to them. The sovereign allows them either the whole or a part of the capture: this entirely depends on the nature of the contract he has made with them.

As the subjects are not under an obligation of scrupulously weighing the justice of the war, which indeed they have not always an opportunity of being thoroughly acquainted with, and respecting which they are bound, in case of doubt, to rely on the sovereign’s judgment (§ 187), — they unquestionably may with a safe conscience serve their country by fitting out privateers, unless the war be evidently unjust. But, on the other hand, it is an infamous proceeding on the part of foreigners, to take out commissions from a prince, in order to commit piratical depredations on a nation which is perfectly innocent with respect to them. The thirst of gold is their only inducement; nor can the commission they have received efface the infamy of their conduct, though it screens them from punishment. Those alone are excusable, who thus assist a nation whose cause is undoubtedly just, and that has taken up arms with no other view than that of defending herself from oppression. They would even deserve praise for their exertions in such a cause, if the hatred of oppression, and the love of justice, rather than the desire of riches, stimulated them to generous efforts, and induced them to expose their lives or fortunes to the hazards of war.

§ 230. Volunteers.
The noble view of gaining instruction in the art of war, and thus acquiring a greater degree of ability to render useful services to their country, has introduced the custom of serving as volunteers even in foreign armies; and the practice is undoubtedly justified by the sublimity of the motive. At present, volunteers, when taken by the enemy, are treated as if they belonged to the army in which they fight. Nothing can be more reasonable: they in fact join that army, and unite with it in supporting the same cause; and it makes little difference in the case, whether they do this in compliance with any obligation, or at the spontaneous impulse of their own free choice.

§ 231. What soldiers and subalterns may do.
Soldiers can undertake nothing without the express or tacit command of their officers. To obey and execute, is their province, — not to act at their own discretion: they are only instruments in the hands of their commanders. Let it be remembered here, that, by a tacit order, I mean one which is necessarily included in an express order, or in the functions with which a person is intrusted by his superior. What is said of soldiers must also in a proper degree be understood of officers, and of all who have any subordinate command, wherefore, with respect to things which are not intrusted to their charge, they may both be considered as private individuals, who are not to undertake any thing without orders. The obligation of the military is even more strict, as the martial law expressly forbids acting without orders; and this discipline is so necessary that it scarcely leaves any room for presumption. In war, an enterprise which wears a very advantageous appearance, and promises almost certain success, may nevertheless be attended with fatal consequences. It would be dangerous, in such a case, to leave the decision to the judgment of men in subordinate stations, who are not acquainted with all the views of their general, and who do not possess an equal degree of knowledge and experience; it is therefore not to be presumed that he intends to let them act at their own discretion. Fighting without orders is almost always considered, in a military man, as fighting contrary to orders, or contrary to prohibition. There is, therefore, hardly any case, except that of self-defense, in which the soldiers and inferior officers may act without orders. In that one case, the orders may safely be presumed; or rather, the right of self-defense naturally belongs to every one, and requires no permission. During the siege of Prague, in the last war, a party of French grenadiers made a sally without orders and without officers, — possessed themselves of a battery, spiked a part of the cannon, and brought away the remainder into the city. The Roman severity would have punished those men with death. The famous example of the consul Manlius is well known, who, notwithstanding the victory gained by his son, caused capital punishment to be inflicted on him for having engaged the enemy without orders.2 But the difference of times and manners obliges a general to moderate such severity. The mareschal Bellisle publicly reprimanded those brave grenadiers, but secretly caused money to be distributed among them, as a reward for their courage and alacrity. At another famous siege in the same war, that of Coni, the private men of some battalions that were stationed in the fosses, made, of their own accord, during the absence of their officers, a vigorous sortie, which was attended with success. Baron Leutrum was obliged to pardon their transgression, lest he should damp an ardor on which the safety of the place entirely depended. Such inordinate impetuosity should nevertheless be checked as far as possible; since it may eventually be productive of fatal consequences. Avidius Cassius inflicted capital punishment on some officers of his army, who had, without orders, marched forth at the head of a handful of men, to surprise a body of three thousand enemies, and had succeeded in cutting them to pieces. This rigor he justified, by saying that there might have been an ambuscade, — dicens, evenire potiusse ut essent insidiœ, etc.3

§ 232. Whether the state is bound to indemnify the subjects for damages sustained in war.4
Is the state bound to indemnify individuals for the damages they have sustained in war? We may learn from Grotius that authors are divided on this question.5 The damages under consideration are to be distinguished into two kinds, — those done by the state itself or the sovereign, and those done by the enemy. Of the first kind, some are done deliberately and by way of precaution, as, when a field, a house, or a garden, belonging to a private person, is taken for the purpose of erecting on the spot a town rampart, or any other piece of fortification, — or when his standing corn or his storehouses are destroyed, to prevent their being of use to the enemy. Such damages are to be made good to the individual, who should bear only his quota of the loss.6 But there are other damages, caused by inevitable necessity, as, for instance, the destruction caused by the artillery in retaking a town from the enemy. These are merely accidents, — they are misfortunes which chance deals out to the proprietors on whom they happen to fall. The sovereign, indeed, ought to show an equitable regard for the sufferers, if the situation of his affairs will admit of it: but no action lies against the state for misfortunes of this nature, — for losses which she has occasioned, not wilfully, but through necessity and by mere accident, in the exertion of her rights. The same may be said of damages caused by the enemy. All the subjects are exposed to such damages: and woe to him on whom they fall! The members of a society may well encounter such risk of property, since they encounter a similar risk of life itself. Were the state strictly to indemnify all those whose property is injured in this manner, the public finances would soon be exhausted; and every individual in the state would be obliged to contribute his share in due proportion, — a thing utterly impracticable. Besides, these indemnifications would be liable to a thousand abuses, and there would be no end of the particulars. It is therefore to be presume that no such thing was ever intended by those who united to form a society.

But it is perfectly consonant to the duties of the state and the sovereign, and, of course, perfectly equitable, and even strictly just, to relieve, as far as possible, those unhappy sufferers who have been ruined by the ravages of war,7 as likewise to take care of a family whose head and support has lost his life in the service of the state, There are many debts which are considered as sacred by the man who knows his duty, although they do not afford any ground of action against him.8


NOTES

     1.    Hence it is illegal to have any commercial intercourse with an enemy, or even to pay him a just debt, during war. Grotius, b. iii. c. iv. § 8; Bynkershoek, b. i. c. iii.; Dr. Phillimore on Licenses, 5; The Hoop, 1 Rob. Rep. 198; Potts v. Bell, 8 Term Rep. 548; Wilson v. Patteson, 7 Taunt. 439; 3 Merlv. R. 469; 2 Ves. & Bea. 323; {Scholefield v. Eichelberger. 7 Pet. S.C. Rep. 586.} To this general rule there are sometimes exceptions. {The U. States v. Barker, Paine’s C.C. Rep. 157}. Thus Great Britain permitted commercial intercourse with some of her plantations, whilst under capture by the French, because she expected to recover them back. See observations in The Hoop, 1 Rob. Rep. 209; but these exceptions are in general carried on under orders in council and licenses. — C. (See The William Penn, 3 Wash. C.C. Rep. 4848.)
     2.    Til. Liv. lib. viii. cap. vii.
     3.    Volcatius Gallicanus, quoted by Grotius, book HI, chap. xviii. § i. n. 6.
     4.    On the conclusion of the late war between Great Britain and France, it was stipulated that the latter should make compensation for the amount of the confiscations of British property, subject to certain qualifications; and commissioners were appointed by each state to examine and adjudicate upon the claims, and as regarded Great Britain, the regulating act, 59 G. 3, c. xxxi. was passed. See discussion in Hill v. Reardon, 2 Russell’s Rep. 608. — C.
     5.    Lib. iii. cap. xx. § viii.
     6.    It is legal to take possession of these for the benefit of the community, and no action lies for compensation, nor is any recoverable, unless given by act of parliament. 4 Term Rep. 382. — C.
     7.    See note 4, ante.
     8.    It is in general the indispensable duty of every sovereign to adopt the most efficacious measures for the protection of his subjects engaged in war, in order that they may suffer by it as little as possible, instead of voluntarily exposing them to greater evils. During the wars in the Netherlands, Philip the Second prohibited the release or exchange of prisoners of war. He forbade the peasants, under pain of death, to pay any contributions with a view to purchase an immunity from pillage and conflagration;9 and, under the same penalty, prohibited the use of safeguards and protections. In opposition to this barbarous ordinance, the states-general adopted measures fraught with consummate wisdom. They published an edict, in which, after having described the destructive consequences of the Spanish barbarity, they exhorted the Flemings to attend to their own preservation, and threatened to retaliate on all who should obey the cruel ordinance of Philip. By such conduct they put an end to the dreadful proceedings to which it had given birth. — Edit. A.D. 1797
     9.    Our enactments against ransoming ships or property taken by an enemy are in the same spirit; (22 Geo. 2, c. 25); 43 Geo. 3, c. 165); Geo. 3, c. 72) Marshall on Insurance, 431; but exceptions in cases of extreme necessity may be allowed by the court of Admiralty. Id. Ibid.