The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of war in general, and first of the fight of the sovereign, in this respect, over his subjects.
I. WHATEVER has been hitherto said of the essential parts of sovereignty properly and directly regards the internal administration of the state. But, as the happiness and prosperity of a nation demand not only, that order and peace should be maintained at home, but also, that the state should be protected from the insults of enemies abroad, and obtain all the advantages it can from other nations; we shall proceed to examine those parts of sovereignty, which directly regard the safety and external advantages of the state, and discuss the most essential questions relating to this subject.
II. To trace things from their original we must first observe, that mankind being divided into several societies, called states or nations, those political bodies, forming a kind of society among themselves, are also subjected to those primitive and general laws, which God has given to all mankind, and consequently they are obliged to practise certain duties towards each other.
III. It is the system or assemblage of those laws, that is properly called the law of nations; and these are no more, than the laws of nature, which men, considered as members of society in general, ought to practise towards each other; or, in other words, the law of nations is no more, than the general law of sociability, applied not to individuals, composing a society, but to men, as forming different bodies, called states or nations.
IV. The natural state of nations, with respect to each other, is certainly that of society and peace. Such is the natural and primitive state of one man with respect to another; and whatever alteration mankind may have in regard to their original state, they cannot, without violating their duty, break in upon that state of peace and society, in which nature has placed them; and which by her laws she has so strongly recommended to their observance.
V. Hence proceed several maxims of the law of nations; for example, that all states ought to look upon themselves as naturally equal and independent, and to treat each other as such on all occasions. Likewise that they ought to do no injury to any other, but, on the contrary, repair that, which they may have committed. Hence also arises their right of endeavouring to provide for their safety and happiness, and of employing force and arms against those, who declare themselves their enemies. Fidelity in treaties and alliances, and the respect due to ambassadors, are derived from the same principle. This is the idea we ought to form of the law of nations in general.
VI. We do not here propose to enter into all the political questions, which may be started concerning the law of nations; we shall only examine the following articles, which, being the most considerable, include almost all the rest, I mean the right of war, that of treaties and alliances, and that of ambassadors.
VII. The subject of the right of war, being equally important and extensive, merits to be treated with great exactness. We have already observed, that it is a fundamental maxim of the law of nature and nations, that individuals and states ought to live in a state of union and society; that they should not injure each other, but on the contrary should mutually exercise the duties of humanity.
VIII. Whenever men practise these duties, they are said to be in a state of peace. This state is certainly the most agreeable to our nature, as well as the most capable of promoting happiness; and indeed the law of nature was intended chiefly to establish and preserve it.
IX. The state opposite to that of union and peace is what we call war, which, in the most general sense, is no more than the state of those, who try to determine their differences by the ways of force. I say this is the most general sense, for, in a more limited signification, common use has restrained the word war to that, carried on between sovereign powers.1
X. Though a state of peace and mutual benevolence is certainly most natural to man and most agreeable to the laws, which ought to be his guide, war is nevertheless permitted in certain circumstances, and sometimes necessary both for individuals and nations. This we have sufficiently shown in the second part of this work, by establishing the rights, with which nature has invested mankind for their own preservation, and the means they may lawfully employ for attaining that end. The principles of this kind, which we have established with respect to particulars, equally, and even for stronger reasons, are applicable to nations.
XI. The law of God no less enjoins a whole nation to take care of their preservation, than it does private men. It is therefore just, that they should employ force against those, who, declaring themselves their enemies, violate the law of sociability towards them, refuse them their due, seek to deprive them of their advantages, and even to destroy them. It is therefore for the good of society, that people should be able to repress the malice and efforts of those, who subvert the foundations of it; otherwise the human species would become the victims of robbery and licentiousness. For the right of making war is, properly speaking, the most powerful means of maintaining peace.
XII. Hence it is certain that the sovereign, in whose hands the interest of the whole society is lodged, has a right to make war. But, if it be so, we must of course allow him the right of employing the several means necessary for that end. In a word, we must grant him the power of levying troops, and obliging them to perform the most dangerous duties even at the peril of their lives. And this is one branch of the right of life and death, which manifestly belongs to the sovereign.
XIII. But as the strength and valour of troops depend, in a great measure, on their being well disciplined, the sovereign ought, even in times of peace, to train the subjects up to martial exercises, to the end that they, when occasion requires, be more able to sustain the fatigues, and perform the different duties of war.
XIV. The obligation, under which subjects are in this respect, is so rigorous and strong, that, strictly speaking, no man can be exempted from taking up arms, when his country calls on him for assistance; and his refusal would be a just reason not to tolerate such a person any longer in the society. If in most governments there are some subjects exempted from military exercises, this impunity is not a privilege, that belongs to them by right; it is only a toleration, that has no force, but when there are troops sufficient for the defence of the commonwealth, and the persons, to whom it is granted, follow some other useful and necessary employment. Excepting this case, in time of need all the members of the state ought to take the field, and none can be lawfully exempted.
XV. In consequence of these principles, military discipline should be very rigorous; the smallest neglect, or the least fault, is often of the last importance, and for that reason may be severely punished. Other judges make some allowance for the weakness of human nature, or the violence of passions; but in a counsel of war, there is not so much indulgence; death is often inflicted on a soldier, whom the dread of that very evil has induced to quit his post.
XVI. It is therefore the duty of those, who are once enlisted, to maintain the post, where the general has placed them; and to fight bravely, even though they run a risk of losing their lives. To conquer or die is the law of such engagements; and it is certainly much better to lose one’s life gloriously, by endeavouring to destroy that of the enemy, than to die in a cowardly manner. Hence some judgment may be formed of what we ought to think of those captains of ships, who, by orders of their superior, blow themselves up into the air, rather than fall into the hands of the enemy. Suppose the number of ships equal on both sides, if one of our vessels is taken the enemy will have two more than we; whereas if one of ours is sunk, they will have but one more; and if the vessel, which wants to take ours, sink with it, which often happens, the forces will remain equal.
XVII. In regard to the question, whether subjects are obliged to take up arms, and serve in an unjust war, we must judge of it by the principles already established at the end of the first chapter of the third part, which treats of the legislative power.
XVIII. These are the obligations of subjects with respect to war and to the defence of government; but this part of the supreme power being of great importance, the utmost precaution is required in the sovereign to exercise it in such a manner, as may prove advantageous to the state. We shall here point out the principal maxims on this article of politics.
XIX. First then it is evident, that the force of a state, with respect to war, consists chiefly in the number of its inhabitants; sovereigns therefore ought to neglect nothing, that can either support or augment the number of them.
XX. Among the other means, which may be used for this purpose, there are three of great efficacy. The first is easily to receive all strangers of good character, who want to settle among us; to let them taste the sweets of government; and to make them share the advantages of civil liberty. Thus the state is filled with the subjects, who bring with them the arts, commerce, and riches; and among whom we may, in time of need, find a considerable number of good soldiers.
XXI. Another thing, conducive to the same end, is to favor and encourage marriages, which are the pledges of the state; and to make good laws for this purpose. The mildness of the government may, among other things, greatly contribute to incline the subjects to join together in wedlock. People, loaded with taxes, who can hardly, by their labour, find wherewithal to supply the wants of life and the public charges, are not inclined to marry, lest their children should starve for hunger.
XXII. Lastly another mean, very proper for maintaining and augmenting the number of inhabitants, is liberty of conscience. Religion is one of the greatest advantages of mankind, and all men view it in that light. Every thing, tending to deprive them of this liberty, appears insupportable. They cannot easily accustom themselves to a government, which tyrannizes over them in this article. France, Spain, and Holland present us with sensible proofs of the truth of these observations. Persecutions have deprived the first of a great part of her inhabitants; by which means she has been considerably weakened. The second is almost unpeopled; and this depopulation is occasioned by the barbarous and tyrannical establishment, called the Inquisition; an establishment equally affronting to God and pernicious to human society, and which has made a kind of desert of one of the finest countries in Europe. The third, in consequence of an entire liberty of conscience, which she offers to all the world, is considerably improved even amidst wars and disasters. She has raised herself, as it were, on the ruin of other nations, and by the number of her inhabitants, who have brought power, commerce, and riches into her bosom, she enjoys a high degree of credit and prosperity.
XXIII. The great number of inhabitants is therefore the principal strength of a country. But for this end, the subjects must also be inured betimes to labor, and trained to virtue. Luxury, effeminacy, and pleasure, impair the body, and enervate the mind. A prince therefore, who desires to put the military establishment on a proper footing, ought to take particular care of the education of youth, so as to procure his subjects the means of forming themselves, by a strict discipline, to bodily exercises, and to prevent luxury and pleasure from debauching their manners, or weakening their courage.
XXIV. Lastly one of the most effectual means of having good troops is to make them observe the military order and discipline with all possible care and exactness; to take particular care, that the soldiers be punctually paid; to see that the sick be properly looked after, and to furnish them with the assistance, they stand in need of; lastly, to preserve among them a knowledge of religion and of the duties it prescribes, by procuring them the means of instruction. These are the principal maxims, which good policy suggests to sovereigns, by means of which they may reasonably hope always to find good troops among their subjects, such as shall be disposed to spill the last drop of their blood in defence of their country.
1. See lower down, chap. iii.