The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of those things, which ought to precede war.
I. HOWEVER just reason we may have to make war, yet, as it inevitably brings along with it an incredible number of calamities, and oftentimes acts of injustice, it is certain, that we ought not to proceed too easily to a dangerous extremity, which may perhaps prove fatal to the conqueror himself.
II. The following are the measures, which prudence directs to be observed in these circumstances.
1. Supposing the reason of the war just in itself, yet the dispute ought to be about something of great consequence; since it is better even to relinquish part of our right, when the thing is not considerable, than to have recourse to arms to defend it.
2. We ought to have at least a probable appearance of success; for it would be a criminal temerity, to expose ourselves to certain destruction, and to run into a greater, in order to avoid a lesser evil.
3. Lastly, there should be a real necessity for taking up arms; that is, we ought not to have recourse to force; but when we can employ no milder method of recovering our right, or of defending ourselves from the evils, with which we are menaced.
III. These measures are agreeable not only to the principles of prudence, but also to the fundamental maxims of sociability, and the love of peace; maxims of no less force with respect to nations, than individuals. By these a sovereign must therefore be necessarily directed; justice obliges him to it, in consequence of the very nature and end of government. For, as he ought to take particular care of the state, and of his subjects, he should not expose them to the evils, with which war is attended, except in the last extremity, and when there is no other expedient left but that of arms.
IV. It is not therefore sufficient, that the war be just in itself, with respect to the enemy; it must also be so with respect to ourselves and our subjects. Plutarch informs us, “that, among the ancient Romans, when the Feciales had determined, that a war might be justly undertaken, the senate afterwards examined whether it would be advantageous to engage in it.”
V. Now among the methods of deciding differences between nations without a war, there are three most considerable. The first is an amicable conference between the contending parties; with respect to which Cicero judiciously observes, “that this method of terminating a difference by a discussion of reasons on both sides is peculiarly agreeable to the nature of man; that force belongs to brutes, and that we never ought to have recourse to it, but when we cannot redress our grievances by any other method.”
VI. The second way of terminating a difference between those who have not a common judge, is to put the matter to arbitration. The more potent indeed often neglect this method, but it ought certainly to be followed by those, who have any regard to justice and peace; and it is a way, that has been taken by great princes and people.
VII. The third method, in fine, which may be sometimes used with success, is that of casting lots. I say we may sometimes use this way; for it is not always lawful to refer the issue of a difference, or of a war, to the decision of lots. This method cannot be taken, except when the dispute is about a thing, in which we have a full property, and which we may renounce whenever we please. But in general, the obligation of the sovereign to defend the lives, the honor, and the religion of his subjects, as also his obligation to maintain the dignity of the state, are of too strong a nature to suffer him to renounce the most natural and most probable means of his own security, as well as that of the public, and to refer his case to chance, which in its nature is entirely precarious.
VIII. But if upon due examination he, who has been unjustly attacked, finds himself so weak, that he has no probability of making any considerable resistance, he may reasonably decide the difference by way of lot, in order to avoid a certain, by exposing himself to an uncertain danger; which, in this case, is the least of two inevitable evils.
IX. There is also another method, which has some relation to lots. This consists in single combats, which have often been used to terminate such differences, as were likely to produce a war between two nations. And indeed, to prevent a war, and its concomitant evils, I see no reason, that can hinder us from referring matters to a combat between a certain number of men, agreed upon by both parties. History furnishes us with several examples of this kind, as that of Turnus and Eneas, Menelaus and Paris, the Horatii and the Curiatii.
X. It is a question of some importance, to know whether it be lawful thus to expose the interest of a whole state to the fate of those combats? It appears on the one hand, that by such means we spare the effusion of human blood, and abridge the calamities of war; on the other hand, it promiseth fairer, and looks like a better venture, to stand the shock even of a bloody war, than by one blow to risk the liberty and safety of the state by a decisive combat; since, after the loss of one or two battles, the war may be set on foot again, and a third perhaps may prove successful.
XI. However it may be said, that, if otherwise there is no prospect of making a good end of a war, and if the liberty and safety of the state are at stake; there seems to be no reason against taking this step, as the least of two evils.
XII. Grotius, in examining this question, pretends that these combats are not reconcileable to internal justice, though they are approved by the external right of nations; and that private persons cannot innocently expose their lives, of their own accord, to the hazard of a single combat, though such a combat may be innocently permitted by the state or sovereign, to prevent greater mischiefs. But it has been justly observed, that the arguments, used by this great man, either prove nothing at all, or prove at the same time, that it is never lawful to venture one’s life in any combat whatever.
XIII. We may even affirm, that Grotius is not very consistent with himself, since he permits this kind of combats, when otherwise there is the greatest probability, that he, who prosecutes an unjust cause, will be victorious, and thereby destroy a great number of innocent persons. For this exception evinces, that the thing is not bad in itself, and that all the harm, which can be in this case, consists in exposing our own life, or that of others, without necessity, to the hazard of a single combat. The desire of terminating, or preventing a war, which has always terrible consequences, even to the victorious, is so commendable, that it may excuse, if not entirely justify those, who engage either themselves or others even imprudently in a combat of this kind. Be this as it may, it is certain that in such a case those, who combat by the order of the state, are entirely innocent; for they are no more obliged to examine whether the state acts prudently or not, than when they are sent upon an assault, or to fight a pitched battle.
XIV. We must however observe, that it was a foolish superstition in those people, who looked upon a set combat, as a lawful method of determining all differences, even between individuals, from a persuasion, that the Deity gave always the victory to the good cause; for which reason they called this kind of combat the judgment of God.
XV. But if after having used all our endeavours to terminate differences in an amicable manner, their remains no further hope, and we are absolutely constrained to undertake a war, we ought first to declare it in form.
XVI. This declaration of war, considered in itself, and independently of the particular formalities of each people, does not simply belong to the law of nations, taking this word in the sense of Grotius, but to the law of nature itself. Indeed prudence and natural equity equally require, that, before we take up arms against any state, we should try all amicable methods to avoid coming to such an extremity. We ought then to summon him, who has injured us, to make a speedy satisfaction, that we may see whether he will not have regard to himself, and not put us to the hard necessity of pursuing our right by force of arms.
XVII. From what has been said it follows, that this declaration takes place only in offensive wars; for, when we are actually attacked, that alone gives us reason to believe, that the enemy is resolved not to listen to an accommodation.
XVIII. From this it also follows, that we ought not to commit acts of hostility immediately upon declaring war, but should wait so long at least, as we can without doing ourselves a prejudice, until he, who has done us the injury, plainly refuses to give us satisfaction, and has put himself in a condition to receive us with bravery and resolution; otherwise the declaration of war would be only a vain ceremony. For we ought to neglect no means to convince all the world, and even the enemy himself, that it is only absolute necessity, that obliges us to take up arms for the recovery or defence of our just rights; after having tried every other method, and given the enemy full time to consider.
XIX. Declarations of war are distinguished into conditional and absolute. The conditional is that, which is joined with a solemn demand of restitution, and with this condition, that if the injury be not repaired, we shall do ourselves justice by arms. The absolute is that, which includes no condition; and by which we absolutely renounce the friendship and society of him, against whom we declare war. But every declaration of war, in whatever manner it be made, is of its own nature conditional;1 for we ought always to be disposed to accept of a reasonable satisfaction, so soon as the enemy offers it; and on this account some writers reject this distinction of the declaration of war into conditional and absolute. But it may nevertheless be maintained, by supposing that he, against whom war is declared purely and simply, has already shown, that he had no design to spare us the necessity of taking up arms against him. So far therefore the declaration may, at least as to the form of it, be pure and simple, without any prejudice to the disposition, in which we ought always to be, if the enemy will hearken to reason. But this relates to the conclusion, rather than the commencement of a war; to the latter of which the distinction of conditional and absolute declarations properly belongs.
XX. As soon as war has been declared against a sovereign, it is presumed to be declared at the same time not only against all his subjects, who, in conjunction with him, form one moral person; but also against all those, who shall afterwards join him, and who, with respect to the principal enemy, are to be looked upon only as allies, or adherents.
XXI. As to the formalities, observed by different nations in declaring war they are all arbitrary in themselves. It is therefore a matter of indifference, whether the declaration be made by envoys, heralds, or letters; whether the sovereign in person, or to his subjects, provided the sovereign cannot plead ignorance of it.
XXII. With respect to the reasons why a solemn denunciation was required into such a war, as by the law of nations is called just; Grotius pretends it was, that the people might be assured, that the war was not undertaken by private authority, but by the consent of one or other of the nations, or of their sovereigns.
XXIII. But this reason of Grotius’s seems to be insufficient; for are we more assured, that the war is made by public authority, when a herald for instance comes to declare it with certain ceremonies, than we should be, when we see an army upon our frontiers, commanded by a principal person of the state, and ready to enter our country? Might it not more easily happen, that one, or a few persons, should assume the character of herald, than that a single man should, of his own authority, raise an army, and march at the head of it to the frontiers, without the sovereign’s knowledge?
XXIV. The truth is, the principal end of a declaration of war, or at least what has occasioned its institution, is to let all the world know, that there was just reason to take up arms, and to signify to the enemy himself, that it had been, and still was, in his power to avoid it. The declarations of war, and the manifestos published by princes, are marks of the due respect they have for each other, and for society in general, to whom by such means they give an account of their conduct, in order to obtain the public approbation. This appears particularly by the manner in which the Romans made those denunciations. The person sent for this purpose took the gods to witness, that the nation, against whom they had declared war, had acted unjustly, by refusing to comply with what law and justice required.
XXIV. Lastly it is to be observed, that we ought not to confound the declaration with the publication of war. This last is made in favor of the subjects of the prince, who declares the war, and to inform them, that they are henceforth to look upon such a nation, as their enemy, and to take their measures accordingly.
1. See above, numb. xviii.