The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the different kinds of war.
I. BESIDES the division abovementioned of war into just and unjust, there are several others, which it is proper now to consider. And first war is distinguished into offensive and defensive.
II. Defensive wars are those, undertaken for the defence of our persons, or the preservation of our properties. Offensive wars are those, which are made to constrain others to give us our due, in virtue of a perfect right we have to exact it of them; or to obtain satisfaction for a damage unjustly done us, and to force them to give caution for the future.
III. 1. We must therefore take care not to confound this with the former distinction; as if every defensive war were just, and, on the contrary, every offensive war unjust. It is the present custom to excuse the most unjust wars, by saying they are purely defensive. Some people think, that all unjust wars ought to be called offensive, which is not true; for if some offensive wars be just, of which there is no doubt, there are also defensive wars unjust; as when we defend ourselves against a prince, who has had sufficient provocation to attack us.
IV. 2. Neither are we to believe, that he, who first injures another, begins by that an offensive war, and that the other, who demands satisfaction for the injury, is always upon the defensive. There are a great many unjust acts, which may kindle a War, and yet are not the war; as the ill treatment of a prince’s ambassador, the plundering of his subjects, etc. If therefore we take up arms to revenge such an unjust act, we commence an offensive, but a just war; while the prince, who has done the injury, and will not give satisfaction, makes a defensive, but an unjust war. An offensive war is therefore unjust only, when it is undertaken without a lawful cause; and then the defensive war which on other occasions might be unjust, becomes just.
V. We must therefore affirm in general, that the first, who takes up arms, whether justly or unjustly, commences an offensive war; and he, who opposes him, whether with or without a reason, begins a defensive war. Those, who look upon the word offensive war to be an odious term, as always implying something unjust, and who on the contrary, consider a defensive war as inseparable from equity, confound ideas, and perplex a thing which of itself seems to be sufficiently clear. It is with princes as with private persons. The plaintiff, who commences a suit at law, is sometimes in the wrong, and sometimes in the right. It is the same with the defendant. It is wrong to refuse to pay a sum, which is justly due; and it is right to forbear paying what we do not owe.
VI. In the third place, Grotius distinguishes war into private, public, and mixed. Public war he calls that, which is made on both sides by the authority of the civil power. Private war, that which is made between private persons, without any public authority; and lastly mixed war, that, which, on one side is carried on by public authority, and on the other, by private persons.
VII. We may observe concerning this division, that, if we take the word war in the most general and extensive sense, and understand by it all taking up arms with a view to decide a quarrel, in contradistinction to the way of deciding a difference by recourse to a common judge, then this distinction may be admitted; but custom seems to explode it, and has restrained the signification of the word war to that, carried on between sovereign powers. In civil society private persons have not a right to make war. And as for the state of nature, we have already treated of the right, which men have in that state to defend and preserve their persons and properties; so that as we are here treating only of the right of sovereigns, with regard to each other, it is properly public, and not private war, that falls under our present consideration.
VIII. 4. War is also distinguished into solemn according to the laws of nations, and not solemn. To render a war solemn two things are requisite; the first, that it be made by the authority of the sovereign; the second, that it be accompanied with certain formalities, as a formal declaration, etc. but of this we shall treat more fully in its proper place. War not solemn is that, which is made either without a formal declaration, or against mere private persons. We shall here only hint at this division, deferring a more particular examination of it, and an enquiry into its effects, till we come to treat of the formalities, which usually precede war.
IX. But a question is moved, relating to this subject, which is, whether a magistrate, properly so called, and as such, has power of making war of his own accord? Grotius answers, that, judging independently of the civil laws, every magistrate seems to have as much right, in case of resistance, to take up arms in order to exercise his jurisdiction, and to see his commands executed, as to defend the people, entrusted to his care. Puffendorf, on the contrary, takes the negative, and passes censure on the opinion of Grotius.
X. But it is easy to reconcile these two authors, the dispute between them being merely about words. Grotius fixes a more vague and general idea to the term war.1 According to him therefore, when a subordinate magistrate takes up arms to maintain his authority, and to reduce those to reason, who refuse to submit to him, he is supposed to act with the approbation of the sovereign; who, by entrusting him with the share in the government of the state, has at the same time invested him with the power necessary to exercise it. And thus the question is only, whether every magistrate, as such, need, on this occasion, an express order from the sovereign; and whether the constitution of civil societies in general require it, independently of the laws of each particular state?
XI. Now if a magistrate can have recourse to arms for the reduction of one person, of two, ten, or twenty, who either refuse to obey him, or attempt to hinder the exercise of his jurisdiction, why may he not use the same means against fifty, a hundred, a thousand? etc. The greater the number the disobedient, the more he will have occasion for force to overcome their resistance. Now this is what Grotius includes under the term war.
XII. Puffendorf agrees to this in the main; but he pretends that this coercive power, which belongs to a magistrate over disobedient subjects, is not a right of war; war seeming to be intirely between equals, or at least, such as pretend to equality. The idea of Puffendorf is certainly more regular, and agreeable to custom; but it is evident, that the difference between him and Grotius consists only in the greater or less extent, which each of them gives to the word war.
XII. If it be objected, it is dangerous to leave so much power to a subordinate magistrate; this may be true; but then it proves only, that the prudence of legislators requires they should set bounds in this respect to the power of magistrates, in order to prevent an inconveniency, which should otherwise arise from the institution of magistracy.
XIV. But to judge of the power of the magistrates, or of generals and leaders, in respect to war, properly so called, and which is carried on against a foreign enemy, we need only to attend to their commissions; for it is evident, that they cannot lawfully undertake any act of hostility of their own head, and without a formal order of the sovereign, at least reasonably presumed, in consequence of particular circumstances.
XV. Thus, for example, a general, sent upon an expedition with an unlimited authority, may act against the enemy offensively, as well as defensively, and in such a manner, as he shall judge most advantageous; but he can neither levy a new war, nor make peace of his own head. But if his power be limited, he ought never to pass the bounds prescribed, unless he is unavoidably reduced to it by the necessity of self defence; for whatever he does in that case is supposed to be with the consent and approbation of the sovereign. Thus, if an admiral has orders to be upon the defensive, he may, notwithstanding such a restraint, break in upon the enemy’s fleet, and sink and burn as many of their ships, as he can, if they come to attack him. All, that he is forbidden, is to challenge the enemy first.
XVI. In general the governors of provinces and cities, if they have troops under their command, may by their own authority defend themselves against an enemy, who attacks them; but they ought not to cany the war into a foreign country, without an express order from their sovereign.
XVII. It was in virtue of this privilege, arising from necessity, that Lucius Pinarius,2 governor of Enna in Sicily for the Romans, upon certain information, that the inhabitants designed to revolt to the Carthaginians, put them all to the sword, and thus preserved the place. But, except in the like case of necessity, the inhabitants of a town have no right to take up arms in order to obtain satisfaction for those injuries, which the prince neglects to revenge.
XVIII. A mere presumption of the will of the sovereign would not even be sufficient to excuse a governor, or any other officer, who should undertake a war, except in case of necessity, without either a general or particular order. For it is not sufficient to know what part the sovereign would probably act, if he were consulted, in such a particular posture of affairs; but it should rather be considered in general, what it is probable a prince would desire should be done without consulting him, when the matter will bear some delay, and the affair is dubious. Now certainly sovereigns will never consent, that their ministers should, whenever they think proper, undertake without their order, a thing of such importance, as an offensive war, which is the proper subject of the present inquiry.
XIX. In these circumstances, whatever part the sovereign would have thought proper to act, if he had been consulted; and whatever success the war, undertaken without his orders, may have had; it is left to the sovereign whether he will ratify, or condemn the act of his minister. If he ratifies it, this approbation renders the war solemn, by reflecting back, as it were, an authority upon it, so that it obliges the whole commonwealth. But if the sovereign should condemn the act of the governor, the hostilities committed by the latter ought to pass for a sort of robbery, the fault of which by no means affects the state, provided the governor is delivered up, or punished according to the laws of the country, and proper satisfaction be made for the damages sustained.
XX. We may further observe, that in civil societies, when a particular member has done an injury to a stranger, the governor of the commonwealth is sometimes responsible for it, so that war may be declared against him on that account. But to ground this kind of imputation, we must necessarily suppose one of these two things, sufferance, or reception; viz. either that the sovereign has suffered this harm to be done to the stranger, or that he afforded a retreat to the criminal.
XXI. In the former case it must be laid down as a maxim, that a sovereign, who, knowing the crimes of his subjects, as for example, that they practise piracy on strangers; and being also able and obliged to hinder it, does not hinder it, renders himself criminal, because he has consented to the bad action, the commission of which he has permitted, and consequently furnished a just reason of war.
XXII. The two conditions abovementioned, I mean the knowledge and sufferance of the sovereign, are absolutely necessary, the one not being sufficient without the other, to communicate any share in the guilt. Now it is presumed, that a sovereign knows what his subjects openly and frequently commit; and as to his power of hindering the evil, this likewise is always presumed, unless the want of it be clearly proved.
XXIII. The other way, in which a sovereign renders himself guilty of the crime of another, is by allowing a retreat and admittance to the criminal, and, screening him from punishment. Puffendorf pretends, that if we are obliged to deliver up a criminal, who takes shelter among us, it is rather in virtue of some treaty on this head, than in consequences of a common and indispensable obligation.
XXIV. But Puffendorf I think has, without sufficient reasons, abandoned the opinion of Grotius, which seems to be better founded. The principles of the latter, in regard to the present question, may be reduced to these following.
1. Since the establishment of civil societies, the right of punishing public offences, which every person, if not chargeable himself with such a crime, had in the state of nature, has been transferred to the sovereign, so that the latter alone hath the privilege of punishing, as he thinks proper, those transgressions of his subjects, which properly interest the public.
XXV. But this right of punishing crimes is not so exclusively theirs, but that either public bodies or their governors have a right to procure the punishment of them in the same manner, as the laws of particular countries allow private people the prosecution of crimes before the civil tribunal.
XXVI. 3. This right is still stronger with respect to crimes, by which they are directly injured, and which they have a perfect right of punishing, for the support of their honor and safety. In such circumstances the state, to which the criminal retires, ought not to obstruct the right, that belongs to the other power.
XXVII. 4. Now as one prince does not generally permit another to send armed men into his territories, upon the score of exacting punishment (for this would indeed be attended with terrible inconveniences) it is reasonable the sovereign, in whose dominions the offender lives, or has taken shelter, should either punish the criminal according to his demerits, or deliver him up to be punished at the discretion of the injured sovereign.
This is that delivering up, of which we have so many examples in history.
XXVIII. 5. The principles here laid down concerning the obligation of punishing or delivering up, regard not only the criminals, who have always been subjects of the government they now live under, but also those, who after the commission of a crime, have taken shelter in the country.
XXIX. 6. In fine we must observe, that the right of demanding fugitive delinquents to punishment has not for some ages last past been insisted upon by sovereigns, in most parts of Europe, except in crimes against the state, or those of a very heinous nature. As to less crimes, they are connived at on both sides, unless it is otherwise agreed on by some particular treaty.
XXX. Besides the kinds of war, hitherto mentioned, we may also distinguish them into perfect and imperfect. A perfect war is that, which entirely interrupts the tranquillity of the state, and lays a foundation for all possible acts of hostility. An imperfect war, on the contrary, is that, which does not entirely interrupt the peace, but only in certain particulars, the public tranquillity being in other respects undisturbed.
XXXI. This last species of war is generally called reprisals, of the nature of which we shall give here some account. By reprisals then we mean that imperfect kind of war, or those acts of hostility, which sovereigns exercise against each other, or, with their consent, their subjects, by seizing the persons or effects of the subjects of a foreign commonwealth, that refuseth to do us justice; with a view to obtain security, and to recover our right, and in case of refusal, to do justice to ourselves, without any other interruption of the public tranquillity.
XXXII. Grotius pretends, that reprisals are not founded on the law of nature and necessity, but only on a kind of arbitrary law of nations, by which most of them have agreed, that the goods belonging to the subjects of a foreign state should be a pledge or security, as it were, for what that state, or the governor of it, might owe us, either directly and in their own names, or by rendering themselves responsible for the actions of others, upon refusing to administer justice.
XXXIII. But this is far from being an arbitrary right, founded upon a pretended law of nations, whose existence we cannot prove, depending on the greater or less extent of custom no way binding in the nature of a law. The right we here speak of is a consequence of the constitution of civil societies, and an application of the maxims of the law of nature to that constitution.
XXXIV. During the independence of the state of nature, and before the institution of civil government, if a person had been injured, he could come upon those only, who had done the wrong, or upon their accomplices; because there was then no tie between men, in virtue of which a person might be deemed to have consented, in some manner, to what others did even without his participation.
XXXV. But since civil societies have been formed, that is to say, communities, whose members are all united together for their common defence, there has necessarily arisen thence a conjunction of interests and wills; which is the reason, that as the society or the powers, which govern it, engage to defend each other against every insult; so each individual may be deemed to have engaged to answer for the conduct of the society, of which he is a member, or of the powers, which govern it.
XXXVI. No human establishment can supersede the obligation of that general and inviolable law of nature, that the damage we have done to another should be repaired; except those, who are thereby injured, have manifestly renounced their right of demanding reparation. And when such establishments hinder those, who are injured, from obtaining satisfaction so easily, as they might without them, this difficulty must be made up, by furnishing the persons interested with all the other possible methods of doing themselves justice.
XXXVII. Now it is certain, that societies, or the powers, which govern them, by being armed with the force of the whole body, are sometimes encouraged to laugh with impunity at strangers, who come to demand their due; and that every subject contributes, one way or other, to enable them to act in this manner; so that he may be supposed in some measure to consent to it. But, if he does not in reality consent, there is after all no other manner of facilitating, to injured strangers, the prosecution of their rights, which is rendered difficult by the united force of the whole body, than to authorise them to come upon all those, who are members of it.
XXXVIII. Let us therefore conclude, that, by the constitution of civil societies, every subject, so long as he continues such, is responsible to strangers for the conduct of the society, or of him, who governs it; with this clause however, that he may demand indemnification, when there is any fault or injustice on the part of his superiors. But if it should be any man’s misfortune to be disappointed of this indemnification, he must look upon it as one of those inconveniences, which, in a civil state, the constitution of human affairs renders almost inevitable. If to all these we add the reasons, alledged by Grotius, we shall plainly see, that there is no necessity for supposing a tacit consent of the people to found the right of reprisals.
XXXIX. As reprisals are acts of hostility, and often the prelude or forerunner of a complete and perfect war, it is plain that none but the sovereign can lawfully use this right, and that the subjects can make no reprisals, but by his order and authority.
XL. Besides it is proper, that the wrong or injustice done us, and which occasions the reprisals, should be clear and evident, and that the thing in dispute be of great consequence. For if the injury be dubious, or of no importance, it would be equally unjust and dangerous to proceed to this extremity, and to expose ourselves to all the calamities of an open war. Neither ought we to come to reprisals, before we have tried, by the ordinary means, to obtain justice for the injury committed. For this purpose we must apply to the prince, whose subjects have done us the injustice; and if the prince takes no notice, or refuses satisfaction, we may then make reprisals, in order to obtain it.
XLI. In a word, we must not have recourse to reprisals, except when all the ordinary means of obtaining satisfaction have failed; so that, for instance, if a subordinate magistrate has refused us justice, we are not permitted to use reprisals before we apply to the sovereign himself, who will perhaps grant us satisfaction. In such circumstances, we may therefore either detain the subjects of a foreign state, if they withhold ours; or we may seize their goods and effects. But whatever just reason we may have to make reprisals, we can never directly, and for that reason alone, put those to death, whom we have seized upon, but only secure them, and not use them ill, till we have obtained satisfaction; so that, during all that time, they are to be considered as hostages.
XLII. In regard to the goods, seized by the right of reprisals, we must take care of them till the time, in which satisfaction ought to be made, is expired; after which we may adjudge them to the creditor, or sell them for the payment of the debt; returning to him, from whom they were taken, the overplus, when all charges are deducted.
XLIII. We must also observe, that it is not permitted to use reprisals, except with regard to subjects, properly so called, and their effects; for as to strangers, who do but pass through a country, or only come to make a short stay in it, they have not a sufficient connexion with the state, of which they are only members but for a time, and in an imperfect manner; so that we cannot indemnify ourselves by them, for the loss we have sustained by any native of the country, and by the refusal of the sovereign to render us justice. We must further except ambassadors, who are sacred persons, even in the height of war. But as to women, clergymen, men of letters, etc. the law of nature grants them no privilege in this case, if they have not otherwise acquired it by virtue of some treaty.
XLIV. Lastly, some political writers distinguish those wars, which are carried on between two or more sovereigns, from those of the subjects against their governors. But it is plain, that, when subjects take up arms against their prince, they either do it for just reasons, and according to the principles established in this work, or without a just and lawful cause. In the latter case, it is rather a revolt or insurrection, than a war, properly so called. But if the subjects have just reason to resist the sovereign, it is strictly a war; since, in such a crisis, there are neither sovereign nor subjects, all dependance and obligation having ceased. The two opposite parties are then in a state of nature and equality, trying to obtain justice by their own proper strength, which constitutes what we understand properly by the term war.
1. See above, sect. vii.
2. Livy, lib. xxi. cap. xviii.