Is the war against Iraq “legal?”
March 19, 2003
Researched by, Harmon L. Taylor" holmes221@earthlink.net
What distinguishes a legal war from an illegal war? Ultimately, the opinion of the victor. But, there really is more to it than that, in the eyes of the Law of Nations, and in the eyes of the members of the bodies politic whose “leaders” are giving the “orders.”
How do we determine the “legality” of committing an act of war? To address this, it helps first to know what is considered to be war, or an act of war.
Summary.
The “war” is “legal.” An “act of terrorism” isn’t really defined, and no time is invested in that term beyond this mention. An “act of war” is the kind of thing that is defined, conceptually, as “you know it when you see it.” There are some things, such as moving armed troops into an area, running a blockade, or having bombers and fighter aircraft assume “authority” of the skies, that clearly constitute an “act of war.” Some even feel that “economic sanctions” constitute an “act of war.”
What most don’t understand is the actual nature of the parties who are engaged in this war. If we kid ourselves that we're dealing with a "public war," we'll jump to an errant conclusion. To consider the angle of “private war” gets us a lot closer to an understanding of what is at issue. And, in this line of analysis, what constitutes “cause,” or “necessity,” may be fully and legitimately viewed and determined by the private party(ies).
Thus, we need to go the next step. The “war” is “legal.” Since the British People, as well as high ranking British Officials, are questioning the authority of this engagement from their side of the Atlantic, and since all kinds of people, including “congress-people,” are questioning, even through litigation, the authority of this engagement from this side of the Atlantic, especially in light of the complete absence of any “Declaration of War” by Congress, what we’ve got to determine is (1) who really ARE the private parties? and (2) how do we go about curbing the appetite for war by this/these private party(ies)?
To know one very effective solution for this second question is to identify clearly the answer to the first. And, the answer for the second is a lot closer to home than most realize, or even want to accept at first. War is one of the Four Horsemen, and war comes about as a direct consequence of rebellion against the Law of God. We are in rebellion in any number of ways, one of the most obvious and flagrant is our addiction to our dishonest systems of weights and measures. Cure the absence of Money, and there will be a lot less conflict with our God, which will result in a lot less war on earth.
Discussion.
War.
From Bouvier’s 1856:
WAR. A contention by force; or the art of paralysing the forces of an enemy.
2. It is either public or private. It is not intended here to speak of the latter.
3. Public war is either civil or national. Civil war is that which is waged between two parties, citizens or members of the same state or nation. National war is a contest between two or more independent nations) carried on by authority of their respective governments.
4. War is not only an act, but a state or condition, for nations are said to be at war not only when their armies are engaged, so as to be in the very act of contention, but also when, they have any matter of controversy or dispute subsisting between them which they are determined to decide by the use of force, and have declared publicly, or by their acts, their determination so to decide it.
5. National wars are said to be offensive or defensive. War is offensive on the part of that government which commits the first act of violence; it is defensive on the part of that government which receives such act; but it is very difficult to say what is the first act of violence. If a nation sees itself menaced with an attack, its first act of violence to prevent such attack, will be considered as defensive.
6. To legalize a war it must be declared by that branch of the government entrusted by the constitution with this power. Bro. tit., Denizen, pl. 20. And it seems it need not be declared by both the belligerent powers. Rob. Rep. 232. By the constitution of the United States, art. 1, s. 7, congress are invested with power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; and they have also the power to raise and support armies, and to provide and maintain a navy." See 8 Cranch, R. 110, 154; 1 Mason, R. 79, 81; 4 Binn. R 487. Vide, generally, Grot. B, 1, c. 1, s. 1 Rutherf. Inst. B. 1, c. 19; Bynkershoeck, Quest. Jur. Pub. lib. 1, c. 1; Lee on Capt. c. 1; Chit. Law of Nat. 28; Marten's Law of Nat. B. 8, c. 2; Phil. Ev. Index, h., t. Dane's Ab. Index, h. i.; Com. Dig. h.t. Bac. Ab. Prerogative, D 4; Merl. Repert. mot Guerre; 1 Inst. 249; Vattel, liv. 3, c. 1, Sec. 1; Mann. Com. B. 3, c. 1.
Act of War.
http://www.crimesofwar.org/thebook/act-of-war.html
Crimes of War: The Book
Act of War
by David Turns
Until 1945, an act of war in the traditional and historical sense was understood to mean any act by a State that would effectively terminate the normal international law of peacetime and activate the international law of war. The decision was invariably that of the target State and was generally preceded by a statement warning that certain acts would be considered acts of war and would trigger hostilities. Belligerent and neutral States also used the term. Belligerents would interpret as acts of war any action that seemed to assist the enemy; neutrals, any infringement of their neutrality.
In 1945, the United Nations Charter banned the first use of force, putting an end to declarations of war. "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State," states Article 2 of the charter. The last declaration of war was made by the Soviet Union against Japan in 1945. An example of modern State practice is provided by the United Kingdom, which during the Suez War of 1956 and the Falkland Islands War of 1982 strenuously denied that it was at war with, respectively, Egypt and Argentina. Britain applied the laws of armed conflict in its military operations, nevertheless.
The term act of aggression has to all intents and purposes subsumed the legal term act of war and made it irrelevant, although act of war is still used rhetorically by States that feel threatened. The People's Republic of China stated in 1997 that any attempt by the Republic of China (Taiwan) to declare independence would be regarded as an act of war; and in August 1998, the U.S. Secretary of State, Madeleine Albright, said Osama bin Laden, the reputed mastermind of truck-bomb attacks on two U.S. embassies in Africa, had "declared war on the United States and struck first." In the domestic law of many States, act of war is also used in some contexts, such as insurance and reparations claims, to refer to any use of force in any armed conflict.
David Turns is a barrister and lecturer in law at the University of Liverpool in England. He is the editor of International Law and Espionage (Martinus Nijhoff, 1995, begun by the late Dr. J. Kish).
http://www.iwar.org.uk/iwar/resources/airchronicles/dicenso1.htm
Document created: 31 July 00
Air & Space Power Chronicles
Information Operations:
An Act of War?
Maj David J. DiCenso, USAF, Reserves
b. Terminology
The value of attempting any legal definition for terms such as "act of war," "use of force," and "act of aggression" is suspect at best. There is simply no value in expending any time, energy, or effort to determine precisely how to define these phrases. Article 41 tells us what a use of force is not, and those acts would thus not warrant a kinetic self-defense strike under Article 51. Thus, for purposes of ENIO, the definitions are practically extraneous.
Similarly, the old-fashioned "act of war" analysis seems inapplicable. The U.N. Charter provides no guidance for defining an "act of war," but it clearly proscribes violence without the involvement of the UN Security Council.42 The Charter does not use the "act of war" language, but it does contain the phrases "use of force,"43 "armed attack,"44 "armed force,"45 and "acts of aggression."46 From the perspective of the Security Council's authorization and ability to take action, these terms become less important. Article 39 permits the Security Council to take action based only upon a finding that a mere "breach of the peace" has occurred. When a nation undertakes an operation that may be deemed a "breach of the peace" by the Security Council, they have exposed themselves to international scrutiny and potential sanctions by the United Nations.
http://web.mit.edu/cms/reconstructions/definitions/actsofwar.html
re:constructions
reflections on humanity and media after tragedy
DEFINITIONS
chalenging the use of key words and definitions
ACTS OF WAR
By Bill Kirkpatrick, 09/17/2001
One of the primary themes of the early coverage of the attacks on the World Trade Center and the Pentagon was whether they should be considered terrorism or acts of war. While most acts of "terrorism" have elicited responses that rely on criminal justice procedures (as in the 1993 bombing of the World Trade Center and the 1995 Oklahoma City bombing, in which the culprits were arrested, tried, and sentenced), "acts of war" belong to a different category and historically demand a much greater scope and degree of force in response. Therefore, it matters crucially how these attacks are labeled.
Unlike "war crimes," which are defined by U.N. conventions, acts of war are more open to interpretation. However, the term has traditionally been reserved for militant acts by nation-states: one nation-state commits an act of war on another, with or without a formal declaration of war, thereby threatening a nation's "territorial integrity, political independence or security" (North Atlantic Treaty). As such, the term "act of war" belongs to the geo-political language of governments, armies, distinctions between military and civilian targets, etc. Since the attack on Pearl Harbor is widely considered an act of war, the parallels that many observers tried to draw between that event and the events of 11 September work to shift the latter attacks from the realm of "crime" into the realm of "war."
Public v. Private War.
Interjection of ideas on private war written by Hugo Grotius.
http://www.constitution.org/gro/djbp.htm
On the Law of War and Peace
De Jure Belli ac Pacis
http://www.constitution.org/gro/djbp_103.htm
Book I
CHAPTER 3: The Division of War Into Public and Private and the Nature of Sovereign Power.
The Division of War into public and private — Examples to prove that all private — War is not repugnant to the Law of Nature since the erection of Courts of Justice — The Division of Public War into formal, and informal — Whether the suppression of Tumults by subordinate Magistrates be properly public War — Civil Power, in what it consists — Sovereign Power further considered — The opinion of those, who maintain that the Sovereign Power is always in the people, refuted, and their arguments answered — Mutual subjection refuted — Cautions requisite to understand the nature of Sovereign Power — Distinction of the real differences that exist under similar names — Distinction between the right to Sovereign Power, and the mode of exercising it.
I. THE first and most necessary divisions of war are into one kind called private, another public, and another mixed. Now public war is carried on by the person holding the sovereign power. Private war is that which is carried on by private persons without authority from the state. A mixed war is that which is carried on, on one side by public authority, and on the other by private persons. But private war, from its greater antiquity, is the first subject for inquiry.
The proofs that have been already produced, to shew that to repel violence is not repugnant to natural law, afford a satisfactory reason to justify private war, as far as the law of nature is concerned. But perhaps it may be thought that since public tribunals have been erected, private redress of wrongs is not allowable. An objection which is very just. Yet although public trials and courts of Justice are not institutions of nature, but erected by the invention of men, yet as it is much more conducive to the peace of society for a matter in dispute to be decided by a disinterested person, than by the partiality and prejudice of the party aggrieved, natural justice and reason will dictate the necessity and advantage of every one's submitting to the equitable decisions of public judges. Paulus, the Lawyer, observes that "what can be done by a magistrate with the authority of the state should never be intrusted to individuals; as private redress would give rise to greater disturbance. And "the reason, says King Theodoric, why laws were invented, was to prevent any one from using personal violence, for wherein would peace differ from all the confusion of war, if private disputes were terminated by force?" And the law calls it force for any man to seize what he thinks his due, without seeking a legal remedy.
II. It is a matter beyond all doubt that the liberty of private redress, which once existed, was greatly abridged after courts of justice were established. Yet there may be cases, in which private redress must be allowed, as for instance, if the way to legal justice were not open. For when the law prohibits any one from redressing his own wrongs, it can only be understood to apply to circumstances where a legal remedy exists. Now the obstruction in the way to legal redress may be either temporary or absolute. Temporary, where it is impossible for the injured party to wait for a legal remedy, without imminent danger and even destruction. As for instance, if a man were attacked in the night, or in a secret place where no assistance could be procured. Absolute, either as the right, or the fact may require. Now there are many situations, where the right must cease from the impossibility of supporting it in a legal way, as in unoccupied places, on the seas, in a wilderness, or desert island, or any other place, where there is no civil government. All legal remedy too ceases by fact, when subjects will not submit to the judge, or if he refuses openly to take cognizance of matters in dispute. The assertion that all private war is not made repugnant to the law of nature by the erection of legal tribunals, may be understood from the law given to the Jews, wherein God thus speaks by the mouth of Moses, Exod. xxii. 2. "If a thief be found breaking up, that is, by night, and be smitten that he dies, there shall no blood be shed for him, but if the sun be risen upon him, there shall be blood shed for him." Now this law, making so accurate a distinction in the merits of the case, seems not only to imply impunity for killing any one, in self-defence, but to explain a natural right, founded not on any special divine command, but on the common principles of justice. >From whence other nations have plainly followed the same rule. The passage of the twelve tables is well known, undoubtedly taken from the old Athenian Law, "If a thief commit a robbery in the night, and a man kill him, he is killed lawfully." Thus by the laws of all known and civilized nations, the person is judged innocent, who kills another, forcibly attempting or endangering his life; a conspiring and universal testimony, which proves that in justifiable homicide, there is nothing repugnant to the law of nature.
[Translator's Note: As the topics of the third section have been so fully stated in the second chapter, that section has been omitted, and the translation goes on from the second of the original to the fourth.]
IV. Public war, according to the law of nations, is either SOLEMN, that is FORMAL, or LESS SOLEMN, that is INFORMAL. The name of lawful war is commonly given to what is here called formal, in the same sense in which a regular will is opposed to a codicil, or a lawful marriage to the cohabitation of slaves. This opposition by no means implies that it is not allowed to any man, if he pleases, to make a codicil, or to slaves to cohabit in matrimony, but only, that, by the civil law, FORMAL WILLS and SOLEMN MARRIAGES, were attended with peculiar privileges and effects. These observations were the more necessary ; because many, from a misconception of the word just or lawful, think that all wars, to which those epithets do not apply, are condemned as unjust and unlawful. Now to give a war the formality required by the law of nations, two things are necessary. In the first place it must be made on both sides, by the sovereign power of the state, and in the next place it must be accompanied with certain formalities. Both of which are so essential that one is insufficient without the other.
Now a public war, LESS SOLEMN, may be made without those formalities, even against private persons, and by any magistrate whatever. And indeed, considering the thing without respect to the civil law, every magistrate, in case of resistance, seems to have a right to take up arms, to maintain his authority in the execution of his offices; as well as to defend the people committed to his protection. But as a whole state is by war involved in danger, it is an established law in almost all nations that no war can be made but by the authority of the sovereign in each state. There is such a law as this in the last book of Plato ON LAWS. And by the Roman law, to make war, or levy troops without a commission from the Prince was high treason. According to the Cornelian law also, enacted by Lucius Cornelius Sylla, to do so without authority from the people amounted to the same crime. In the code of Justinian there is a constitution, made by Valentinian and Valens, that no one should bear arms without their knowledge and authority. Conformably to this rule, St. Augustin says, that as peace is most agreeable to the natural state of man, it is proper that Princes should have the sole authority to devise and execute the operations of war. Yet this general rule, like all others, in its application must always be limited by equity and discretion.
In certain cases this authority may be communicated to others. For it is a point settled beyond all doubt that subordinate magistrates may, by their officers, reduce a few disobedient and tumultuous persons to subjection, provided, that to do it, it requires not a force of such enormous magnitude as might endanger the state. Again, if the danger be so imminent as to allow of no time for an application to the sovereign executive power, here too the necessity is admitted as an exception to the general rule. Lucius Pinarius the Governor of Enna, a Sicilian garrison, presuming upon this right, upon receiving certain information that the inhabitants had formed a conspiracy to revolt to the Carthaginians, put them all to the sword, and by that means saved the place. Franciscus Victoria allows the inhabitants of a town to take up arms, even without such a case of necessity, to redress their own wrongs, which the Prince neglects to avenge, but such an opinion is justly rejected by others.
http://www.constitution.org/gro/djbp_222.htm
CHAPTER 22: On the Unjust Causes of War.
Differences between real and colourable motives — War atrocious without either of these motives — Wars of plunder, under the most plausible pretexts, not justifiable — Causes apparently, but not really just — Unnecessary advantage — Desire of a better soil — Discovery of things belonging to others — Incapacity of the original owners — War not always justifiable under the pretext of asserting liberty or of imposing a beneficial government upon a people against their will — Emperor's pretensions to universal empire refuted — Pretensions of the Church — Imperfect obligations — Difference between wars originally unjust and those afterwards becoming so.
I. IN a former part of this work, where the justice of war was discussed, it was observed that some wars were founded upon real motives and others only upon colourable pretexts. This distinction was first noticed by Polybius, who calls the pretexts, profaseiV and the real causes, aitiaV. Thus Alexander made war upon Darius, under the pretence of avenging the former wrongs done by the Persians to the Greeks. But the real motive of that bold and enterprising hero, was the easy acquisition of wealth and dominion, which the expeditions of Xenophon and Agesilaus had opened to his view.
In the same manner, a dispute about Saguntum furnished the Carthaginians with COLOURABLE MOTIVES for the second Punic war, but, in REALITY, they could not brook the indignity of having consented to a treaty, which the Romans had extorted from them at an unfavourable moment; and more especially as their spirits were revived by their recent successes in Spain. The real causes assigned by Thucydides for the Peloponnesian war, were the jealousies entertained by the Lacedaemonians of the then growing power of the Athenians, though the quarrels of the Corcyreans, Potidaens, and other secondary states were made the ostensible reasons.
II. There are some who have neither ostensible reasons, nor just causes to plead for their hostilities, in which, as Tacitus says, they engage from the pure love of enterprise and danger. A disposition to which Aristotle gives the name of ferocity. And in the last book of his Nicomachian Ethics, he calls it a bloody cruelty to convert friends into enemies, whom you may slaughter.
III. Though most powers, when engaging in war, are desirous to colour over their real motives with justifiable pretexts, yet some, totally disregarding such methods of vindication, seem able to give no better reason for their conduct, than what is told by the Roman Lawyers of a robber, who being asked, what right he had to a thing, which he had seized, replied, it was his own, because he had taken it into his possession? Aristotle in the third book of his Rhetoric, speaking of the promoters of war, asks, if it is not unjust for a neighbouring people to be enslaved, and if those promoters have no regard to the rights of unoffending nations? Cicero, in the first book of his Offices, speaks in the same strain, and calls the courage, which is conspicuous in danger and enterprise, if devoid of justice, absolutely undeserving of the name of valour. It should rather be considered as a brutal fierceness outraging every principle of humanity."
IV. Others make -use of pretexts, which though plausible at first sight, will not bear the examination and test of moral rectitude, and, when stripped of their disguise, such pretexts will be found fraught with injustice. In such hostilities, says Livy, it is not a trial of right, but some object of secret and unruly ambition, which acts as the chief spring. Most powers, it is said by Plutarch, employ the relative situations of peace and war, as a current specie, for the purchase of whatever they deem expedient.
By having before examined and established the principles of just and necessary war, we may form a better idea of what goes to constitute the injustice of the same. As the nature of things is best seen by contrast, and we judge of what is crooked by comparing it with what is straight. But for the sake of perspicuity, it will be necessary to treat upon the leading points.
It was shewn above that apprehensions from a neighbouring power are not a sufficient ground for war. For to authorize hostilities as a defensive measure, they must arise from the necessity, which just apprehensions create; apprehensions not only of the power, but of the intentions of a formidable state, and such apprehensions as amount to a moral certainty. For which reason the opinion of those is by no means to be approved of, who lay down as a just ground of war, the construction of fortifications in a neighbouring country, with whom there is no existing treaty to prohibit such constructions, or the securing of a strong hold, which may at some future period prove a means of annoyance. For as a guard or against such apprehensions, every power may construct, in its own territory, strong works, and other military securities of the same kind, without having recourse to actual war. One cannot but admire the character, which Tacitus has drawn of the Chauci, a noble and high-spirited people of Germany, "who, he says, were desirous of maintaining their greatness by justice, rather than by acts of ungovernable rapacity and ambition — provoking no wars, invading no countries, spoiling no neighbours to aggrandize themselves, — yet, when necessity prompted, able to raise men with arms in their hands at a moment's warning — a great population with a numerous breed of horses to form a well mounted cavalry-and, with all these advantages, upholding their reputation in the midst of peace."
VI. Nor can the advantage to be gained by a war be ever pleaded as a motive of equal weight and justice with necessity.
[Translator's note: Section V of the original is omitted in the translation.]
VII. and VIII. Neither can the desire of emigrating to a more favourable soil and climate justify an attack upon a neighbouring power. This, as we are informed by Tacitus, was a frequent cause of war among the ancient Germans.
IX. There is no less injustice in setting up claims, under the pretence of newly discovered titles, to what belongs to another.
Neither can the wickedness, and impiety, nor any other incapacity of the original owner justify such a claim. For the title and right by discovery can apply only to countries and places, that have no owner.
X. Neither moral nor religious virtue, nor any intellectual excellence is requisite to form a good title to property. Only where a race of men is so destitute of reason as to be incapable of exercising any act of ownership, they can hold no property, nor will the law of charity require that they should have more than the necessaries of life. For the rules of the law of nations can only be applied to those, who are capable of political or commercial intercourse: but not to a people entirely destitute of reason, though it is a matter of just doubt, whether any such is to be found.
It was an absurdity therefore in the Greeks to suppose, that difference of manners, or inferiority of intellect made those, whom they were pleased to call barbarians, their natural enemies. But as to atrocious crimes striking at the very root and existence of society, the forfeiture of property ensuing from thence is a question of a different nature, belonging to punishments, under the head of which it was discussed.
XI. But neither the independence of individuals, nor that of states, is a motive that can at all times justify recourse to arms, as if all persons INDISCRIMINATELY had a natural right to do so. For where liberty is said to be a natural right belonging to all men and states, by that expression is understood a right of nature, antecedent to every human obligation or contract. But in that case, liberty is spoken of in a negative sense, and not by way of contrast to independence, the meaning of which is, that no one is by the law of nature doomed to servitude, though he is not forbidden by that law to enter into such a condition. For in this sense no one can be called free, if nature leaves him not the privilege of chusing his own condition: as Albutius pertinently remarks, "the terms, freedom and servitude are not founded in the principles of nature, but are names subsequently applied to men according to the dispositions of fortune." And Aristotle defines the relations of master and servant to be the result of political and not of natural appointment. Whenever therefore the condition of servitude, either personal or political, subsists, from lawful causes, men should be contented with that state, according to the injunction of the Apostle, "Art thou called, being a servant, let not that be an anxious concern?"
XII. And there is equal injustice in the desire of reducing, by force of arms, any people to a state of servitude, under the pretext of its being the condition for which they are best qualified by nature. It does not follow that, because any one is fitted for a particular condition, another has a right to impose it upon him. For every reasonable creature ought to be left free in the choice of what may be deemed useful or prejudicial to him, provided another has no just right to a controul over him.
The case of children has no connection with the question, as they are necessarily under the discipline of others.
XIII. It would scarce have been necessary to refute the foolish opinion of some, who have ascribed to the Roman Emperors dominion over the most remote and unknown nations, if Bartolus, deemed a lawyer of the first eminence, had not pronounced it heresy to deny those pretensions. This opinion has been built upon the Roman Emperor's some times having styled himself Sovereign of the whole world; a term which it was not unusual for many people to apply to their own country. Thus in the scriptures we find Judea frequently called the whole inhabited earth; therefore when the Jews, in their proverbial expression, called Jerusalem the centre of the world, nothing more is to be implied than that it was situated in the middle of Judea.
As to the argument in favor of universal dominion from its being so beneficial to mankind, it may be observed that all its advantages are counterbalanced by still greater disadvantages. For as a ship may be built too large to be conveniently managed, so an empire may be too extensive in population and territory to be directed and governed by one head. But granting the expediency of universal empire, that expediency can not give such a right, as can be acquired only by treaty or conquest. There were many places formerly belonging to the Roman Empire, over which the Emperor has at present no controul. For war, treaty, or cession have made many changes, by which the rights of territory have passed to other states or sovereign princes, and the standards of different communities, whether kingdoms or commonwealths, now wave in places, which the Roman Eagle once overshadowed with his wings. These are losses and changes, that have been experienced by other powers no less than that, which was once mistress of the world.
XIV. But there have been some, who have asserted the rights of the church over unknown parts of the world, though the Apostle Paul himself has expressly said that Christians were not to judge those who were without the pale of their own community. And though the right of judging, which belonged to the Apostles, might in some cases apply to worldly concerns, yet in its general nature it was of a celestial rather than an earthly kind — a judgment not exercised by fire and sword, but by the word of God, proposed to all men and adapted to their peculiar circumstances — a judgment exercised by displaying or withholding the seals of divine grace, as it might be most expedient — lastly, it was a judgment exercised in supernatural punishments; in punishments proceeding from God, like the punishments of Ananias, Elymas, Hymenaeus, and others.
Christ himself, the spring', from whence all the power of the church was derived, and, whose life is the model for the church to follow, said, his kingdom was not of this world, that is, was not of the same nature, with other kingdoms, otherwise, like the rest of sovereigns, he would have maintained his authority by the power of the sword. For if he had pleased to call up the aid of Legions; he would have called up hosts of Angels and not of men. And every exercise of his right was performed by the influence of divine, and not of human power; even when he drove the sellers out of the temple. For the ROD was the EMBLEM and not the INSTRUMENT of divine wrath, as UNCTION was once a SIGN of healing, and not the HEALING POWER ITSELF. St. Augustin on the xviii Chapter of St. John, and 36 ver. invites Sovereign Princes into this kingdom, in these terms, "Hear, O Jews, and Gentiles, hear, O earthly Sovereigns, I will not obstruct your authority, for my kingdom is not of this world.. Be not alarmed, like Herod, who trembled, when he heard that Christ was born, and slew so many innocent children, hoping to include the Saviour in that calamity. His fear shewed itself in cruel wrath. But my kingdom, says Christ, is not of this world. Therefore enter this kingdom without fear. Come with faith, and provoke not the king to anger by your delay."
XV. There is a caution too necessary to be given, against drawing too close a parallel between ancient and modern times. For it is but seldom that any one can adduce a case exactly conformable to his own circumstances. To draw such pretexts from the interpretation of prophecy is the highest presumption. For no prophecy that is yet to be fulfilled can be unfolded without the aid of a prophetic spirit. The times even of events, that are certain, may escape our notice. Nor is it every pre. diction, unless it be accompanied with an express command from God, that can justify recourse to arms: sometimes indeed God brings his predicted designs to their issue by the means of wicked instrument.
XVI. As the imperfect obligations of charity, and other virtues of the same kind are not cognizable in a court of justice, so neither can the performance of them be compelled by force of arms. For it is not the moral nature of a duty that can enforce its fulfillment, but there must be some legal right in one of the parties to exact the obligation. For the moral obligation receives an additional weight from such a right. This obligation therefore must be united to the former to give a war the character of a just war. Thus a person who has conferred a favour, has not, strictly speaking, a RIGHT to demand a return, for that would be converting an act of kindness into a contract.
XVII. It is necessary to observe that a war may be just in its origin, and yet the intentions of its authors may become unjust in the course of its prosecution. For some other motive, not unlawful IN ITSELF, may actuate them more powerfully than the original right, for the attainment of which the war was begun. It is laudable, for instance, to maintain national honour; it is laudable to pursue a public or a private interest, and yet those objects may not form the justifiable grounds of the war in question. A war may gradually change its nature and its object from the prosecution of a right to the desire of seconding or supporting the aggrandizement of some other power. But such motives, though blamable, when even connected with a just war, do not render the war ITSELF unjust, nor invalidate its conquests.
http://www.constitution.org/gro/djbp_301.htm
Book III
CHAPTER 1: What is Lawful in War.
What is lawful in war — General Rules derived from the law of nature — Stratagems and lies — Arrangement of the following parts — First rule, all things necessary to the end lawful — Right resulting not only from the origin of a war, but from causes growing out of the same — Certain consequences justifiable, though not originally lawful — What measures are lawful against those who furnish an enemy with supplies — Stratagems — Negative — Positive — Sometimes allowable to use words in a sense different from the general acceptation — A lie according to the true notion of it injurious to the rights of others — Falsehood allowable in order to deceive children or madmen — Any one addressing another without intentions to deceive, not answerable for the misconceptions of a third person — A person not answerable for the willful mistakes of those to whom he speaks — The fictitious threats of a person in authority — Fiction allowable in order to save the lives of the innocent, or to promote other equally important purposes — Deception lawful against an enemy, but not including promises, or oaths — To forbear using this privilege an act of generosity and Christian simplicity — Not allowable to urge others to what is unlawful for them, but not for us to do — Allowable to use the services of deserters.
I. HAVING, in the preceding books, considered by what persons, and for what causes, war may be justly declared and undertaken, the subject necessarily leads to an inquiry into the circumstances, under which war may be undertaken, into the extent, to which it may be carried, and into the manner, in which its rights may be enforced. Now all these matters may be viewed in the light of privileges resulting simply from the law of nature and of nations, or as the effects of some prior treaty or promise. But the actions, which are authorised by the law of nature, are those that are first entitled to attention.
II In the first place, as it has occasionally been observed, the means employed in the pursuit of any object must, in a great degree, derive the complexion of their moral character from the nature of the end to which they lead. It is evident therefore that we may justly avail ourselves of those means, provided they be lawful, which are necessary to the attainment of any right. RIGHT in this place means what is strictly so called, signifying the moral power of action, which any one as a member of society possesses. On which account, a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack, though he who makes it, as for instance, a soldier in battle, in doing so, is guilty of no crime. For this is a right resulting not properly from the crime of another, but from the privilege of self-defence, which nature grants to every one. Besides, if any one has SURF and UNDOUBTED grounds to apprehend imminent danger from any thing belonging to another, he may seize it without any regard to the guilt or innocence of that owner. Yet he does not by that seizure become the proprietor of it. For that is not necessary to the end he has in view. He may DETAIN it as a precautionary measure, till he can obtain satisfactory assurance of security.
Upon the same principle any one has a natural right to seize what belongs to him, and is unlawfully detained by another: or, if that is impracticable, he may seize something of equal value, which is nearly the same as recovering a debt. Recoveries of this kind establish a property in the things so reclaimed; which is the only method of restoring the equality and repairing the breaches of violated justice. So too when punishment is lawful and just, all the means absolutely necessary to enforce its execution are also lawful and just, and every act that forms a part of the punishment, such as destroying an enemy's property and country by fire or any other way, falls within the limits of justice proportionable to the offence.
III. In the second place, it is generally known that it is not the ORIGIN only of a just war which is to be viewed as the principal source of many of our rights, but there may be causes growing out of that war which may give birth to additional rights. As in proceedings at law, the sentence of the court may give to the successful litigant other rights besides those belonging to the original matter of dispute. So those who join our enemies, either as allies or subjects, give us a right of defending ourselves against THEM also. So too a nation engaging in an unjust war, the injustice of which she knows and ought to know, becomes liable to make good all the expences and losses incurred, because she has been guilty of occasioning them. In the same manner those powers, who become auxiliaries in wars undertaken without any reasonable grounds, contract a degree of guilt and render themselves liable to punishment in proportion to the injustice of their measures. Plato approves of war conducted so far, as to compel the aggressor to indemnify the injured and the innocent.
IV. In the third place, an individual or belligerent power may, in the prosecution of a lawful object, do many things, which were not in the contemplation of the original design, and which in THEMSELVES it would not be lawful to do. Thus in order to obtain what belongs to us, when it is impossible to recover the specific thing, we may take more than our due, under condition of repaying whatever is above the real value. For the same reason it is lawful to attack a ship manned by pirates, or a house occupied by robbers, although in that ship, or that house there may be many innocent persons, whose lives are endangered by such attack.
But we have had frequent occasion to remark, that what is conformable to right taken in its strictest sense is not always lawful in a moral point of view. For there are many instances, in which the law of charity will not allow us to insist upon our right with the utmost rigour. A reason for which it will be necessary to guard against things, which fall not within the original purpose of an action, and the happening of which might be foreseen: unless indeed the action has a tendency to produce advantages, that will far outweigh the consequences of any accidental calamity, and the apprehensions of evil are by no means to be put in competition with the sure hopes of a successful issue. But to determine in such cases requires no ordinary penetration and discretion. But wherever there is any doubt, it is. always the safer -way to decide in favour of another's interest, than to follow the bent of our own inclination. "Suffer the tares to grow, says our divine teacher. least in rooting up the tares you root up the wheat also."
The general destruction, which the Almighty, in right of his supreme Majesty, has sometimes decreed and executed, is not a rule, which we can presume to follow. He has not invested men, in the exercise of power, with those transcendent sovereign rights. Yet he himself, notwithstanding the unchangeable nature of his sovereign will, was inclined to spare the most wicked cities, if ten righteous persons could be found therein. Examples like these may furnish us with rules to decide, how far the rights of war against an enemy may be exercised or relaxed.
V. It frequently occurs as a matter of inquiry, how far we are authorised to act against those, who are neither enemies, nor wish to be thought so, but who supply our enemies with certain articles. For we know that it is a point, which on former and recent occasions has been contested with the greatest animosity; some wishing to enforce with all imaginary rigour the rights of war, and others standing up for the freedom of commerce.
In the first place, a distinction must be made between the commodities themselves. For there are some, such as arms for instance, which are only of use in war; there are others again, which are of no use in war, but only administer t o luxury; but there are some articles, such as money, provisions, ships and naval stores, which are of use at all times both in peace and war.
As to conveying articles of the first kind, it is evident that any one must be ranked as an enemy, who supplies an enemy with the means of prosecuting hostilities. Against the conveyance of commodities of the second kind, no just complaint can be made.- And as to articles of the third class, from their being of a doubtful kind, a distinction must be made between the times of war and peace. For if a power can not defend itself, but by intercepting the supplies sent to an enemy, necessity will justify such a step, but upon condition of making restoration, unless there be some additional reasons to the contrary. But if the conveyance of goods to an enemy tends to obstruct any belligerent power in the prosecution of a lawful right, and the person so conveying them possesses the means of knowing it; if that power, for instance, is besieging a town, or blockading a port, in expectation of a speedy surrender and a peace, the person, who furnishes the enemy with supplies, and the means of prolonged resistance, will be guilty of an aggression and injury towards that power. He will incur the same guilt, as a person would do by assisting a debtor to escape from prison, and thereby to defraud his creditor. His goods may be taken by way of indemnity, and in discharge of the debt. If the person has not yet committed the injury, but only intended to do so, the aggrieved power will have a right to detain his goods, in order to compel him to give future security, either by putting into his hands hostages, or pledges; or indeed in any other way. But if there are evident proofs of injustice in an enemy's conduct the person who supports him in such a case, by furnishing him with succours, will be guilty not barely of a civil injury, but his giving assistance will amount to a crime as enormous, as it would be to rescue a criminal in the very face of the judge. And on that account the injured power may proceed against him as a criminal, and punish him by a confiscation of his goods.
These are the reasons, which induce belligerent powers to issue manifestoes, as an appeal to other states, upon the justice of their cause, and their probable hopes of ultimate success. This question has been introduced under the article, which refers to the law of nature, as history supplies us with no precedent to deduce its establishment from the voluntary law of nations.
We are informed by Polybius, in his first book, that the Carthaginians seized some of the Romans, who were carrying supplies to their enemies, though they afterwards gave them up, upon the demand of the Romans. Plutarch says that when Demetrius had invested Attica, and taken the neighbouring towns of Eleusis and Rhamnus, he ordered the master and pilot of a ship, attempting to convey provisions into Athens, to be hanged, as he designed to reduce that city by famine: this act of rigour deterred others from doing the same, and by that means he made himself master of the city.
VI. Wars, for the attainment of their objects, it cannot be denied, must employ force and terror as their most proper agents. But a doubt is sometimes entertained, whether stratagem may be lawfully used in war. The general sense of mankind seems to have approved of such a mode of warfare. For Homer commends his hero, Ulysses, no less for his ability in military stratagem, than for his wisdom. Xenophon, who was a philosopher as well as a soldier and historian, has said, that nothing can be more useful in war than a well-timed stratagem, with whom Brasidas, in Thueydides agrees, declaring it to be the method from which many great generals have derived the most brilliant reputation. And in Plutarch, Agesilaus maintains, that deceiving an enemy is both just and lawful. The authority of Polybius may be added to those already named; for he thinks, that it shews greater talent in a general to avail himself of some favourable opportunity to employ a stratagem, than to gain an open battle. This opinion of poets, historians, and philosophers is supported by that of Theologians. For Augustin has said that, in the prosecution of a just war, the justice of the cause is no way affected by the attainment of the end, whether the object be accomplished by stratagem or open force, and Chrysostom, in his beautiful little treatise on the priestly office, observes, that the highest praises are bestowed on those generals, who have practised successful stratagems. Yet there is one circumstance, upon which the decision of this question turns more than upon any opinion even of the highest authority, and that is, whether stratagem ought to be ranked as one of those evils, which are prohibited under the maxim OF NOT DOING EVIL, THAT GOOD MAY ENSUE, or to be reckoned as one of those actions, which, though evil IN THEMSELVES, may be so modified by particular occasions, as to lose their criminality in consideration of the good, to which they lead.
VII. There is one kind of stratagem, it is proper to remark, of a negative, and another of a positive kind. The word stratagem, upon the authority of Labeo, taken in a negative sense, includes such actions, as have nothing criminal in them, though calculated to deceive, where any one, for instance, uses a degree of dissimulation or concealment, in order to defend his own property or that of others. So that undoubtedly there is something of harshness in the opinion of Cicero, who says there is no scene of life, that will allow either simulation, or dissimulation to be practised. For as you are not bound to disclose to others all that you either know or intend; it follows that, on certain occasions, some acts of dissimulation, that is, of concealment may be lawful. This is a talent, which Cicero, in many parts of his writings, acknowledges that it is absolutely necessary for statesmen to possess. The history of Jeremiah, in the xxxviiith chapter of his prophecy, furnishes a remarkable instance of this kind. For when that prophet was interrogated by the king, respecting the event of the siege, he prudently, in compliance with the king's orders, concealed the real matter from the nobles, assigning a different, though not a false reason for the conference, which he had had. In the same manner, Abraham called Sarah, his sister, an appellation used familiarly at that time to denote a near relation by blood, concealing the circumstance of her being his wife.
VIII. A stratagem of a positive kind, when practised in actions, is called a feint, and when used in conversation it receives the name of a lie or falsehood. A distinction is made by some, between these two kinds of stratagems, who say, that words are signs of our ideas, but actions are not so. But there is more of truth in the opposite opinion, that words of themselves unaccompanied by the intention of the speaker, signify nothing more than the inarticulate cries would do of any one labouring under grief, or any other passion: which sounds come under the denomination of actions, rather than of speech. But should it be said that being able to convey to others the conceptions of his mind, by words adapted to the purpose, is a peculiar gift of nature, by which man is distinguished from other parts of the animated creation, the truth of this cannot be denied.
To which we may add that such communication may be made not only by words, but by signs or gestures, like those used to the dumb; it makes no difference, whether those signs or gestures have any natural connection with the thing they are intended to signify, or whether such a connection is only assigned to them by custom. Equivalent to such signs or gestures is handwriting, which may be considered, as a dumb language, deriving its force not merely from the words used, and the particular form of the letters, but from the real intention of the writer, to be gathered from thence: — to be gathered either from the resemblance between the characters and the intentions, as in the Egyptian hieroglyphics, or from pure fancy, as among the Chinese.
Here likewise another distinction is necessary to be applied in the same manner, as was done before, in order to remove all ambiguity in using the term Of THE LAW OF NATIONS. For it was there said, that the laws established by independent and separate states, whether or no those laws implied any mutual obligations, were denominated the LAW OF NATIONS. So that words, gestures, and signs, made use of to convey a meaning, imply an obligation, in all the persons concerned, to receive and employ them in their common acceptation. But the employment of OTHER MEANS, coming under NONE OF THOSE DESCRIPTIONS, cannot be construed into a violation of any social contract, although some may be deceived thereby. It is the REAL NATURE of the actions that is here spoken of, and not the ACCIDENTAL circumstances attending them: such actions for instance, as occasion no mischief; or if they do so, there is no guilt, where there is no treacherous design.
We have an instance of the former kind in the conduct of our Saviour, who, on the way to Emmaus, pretended to the disciples, that he was going further; here was a harmless stratagem, unless we interpret the words, as expressive of his intention to have gone further, if he had not been prevented by their efforts and entreaties to detain him. And in another part of the sacred history it is said, that he intended to have passed by the Apostles on the sea, that is, he intended to have done it, had he not been so earnestly importuned by them to go into the ship. There is another instance too in the conduct of Paul, who circumcised Timothy, though he knew the Jews would conclude from thence, that the ordinance of circumcision, which in reality had been abolished, was still binding upon the descendants of Israel, and that Paul and Timothy were of the same opinion. Whereas Paul had no such intention, but only hoped, by that means, to open for himself and Timothy a way to more familiar intercourse with the Jews. Neither could an ordinance of that kind, when the divine obligation was repealed, any longer be deemed of such importance, nor could the evil of a temporary error, resulting from thence, and afterwards to be corrected, be regarded as equivalent to the opportunity, which Paul thought to gain, of making it conducive to the introduction of Christian truth.
The Greek Fathers have given the name of ECONOMY, or MANAGEMENT to stratagems of this kind. On this subject there is an admirable sentiment in Clement of Alexandria, who, in speaking of a good man, says that "he will do many things for the benefit of his neighbour alone, which he would not otherwise have undertaken,"
One of these stratagems was practised by the Romans, who, during the time that they were besieged in the Capitol, threw some loaves of bread into the enemy's camp, that it might not be supposed they were pressed by famine. The feigned flight, which Joshua ordered his people to make, to assist him in his designs upon Ai, affords an instance of a stratagem of the second kind; the ensuing mischiefs of which may be considered, as some of the effects of lawful war. The ORIGINAL DESIGN of that pretended flight does not at all affect the question. The enemy took it for a proof of fear; and he was at liberty to do so, without debarring the other of his right to march this way, or that, with an accelerated or retarded motion, with a shew of courage, or an appearance of fear, as he might judge it most expedient.
History furnishes us with innumerable examples of deceptions practised with success upon an enemy, by assuming his arms, ensigns, colours, or uniforms; all which may be justified upon the same principle. For all these are actions, which any one may avail himself of at his pleasure, by departing from the usual course of his military system. For such points of 'discipline and system depend upon the will and fancy of the military commanders in each state, rather than upon any invariable custom, equally binding upon all nations.
IX. Those signs, by which the daily intercourse of life is maintained, form a subject of more weighty discussion, with which the consideration of lies or falsehood is necessarily interwoven.
All stratagems of this kind are so direct a violation of all moral principle, both in their nature and consequences, that almost every page of the revealed will of God declares their condemnation. Solomon describes a righteous, that is, a good man, as one, who holds every false word in detestation, deprecating the least appearance of deception: and the Apostle's injunction accords with these sentiments, instructing his disciples not to lie to one another.
Nor is it in the high standard of perfection alone, which the divine records present, that such a recommendation of fair, open, and sincere dealing is to be found. It is the theme of praise with poets and philosophers, and the angry hero of the Grecian poet declares, that he detests the man, as an infernal being, who utters one thing with his tongue, while he conceals another in his heart. But making some allowance for poetic fiction-we find even the grave, sober, and discerning, Stagirite describing falsehood, as a vile, and abominable refuge, and painting truth as a lovely object, that must extort the warmest praise.
These are all great and high authorities in favour of open dealing. Yet there are names of no less weight, both among sacred and profane writers, whose opinions are a vindication of stratagems, when used upon PROPER occasions. One writer speaks of a case, where stratagem may be used, even for the benefit of the person, on whom it is practised, and adduces the instances of a physician, who, by means of a deception, overcame the perverseness of a patient, and wrought a salutary cure.
X. To reconcile such a variety of discordant opinions, it may be necessary to devise some way of examining falsehood both in its more extensive, and more confined acceptation. Nor is speaking an untruth, UNAWARES, to be considered in the nature of a lie, but the falsehood, which comes within the limits here defined, is the KNOWN and DELIBERATE UTTERANCE of any thing contrary to our real conviction, intention, and understanding.
Words, or signs, importing the same meaning as words, are generally taken for conceptions of the mind, yet it is no lie for any man to utter a falsehood, which he believes to be true; but the propagation of a truth, which any one believes to be false, IN Him amounts to a lie. There must be in the use of the words therefore an INTENTION to deceive, in order to constitute a falsehood in the proper and common acceptation. Consequently, when any one single word, or the whole tenour of a discourse, admits of more significations than one, either by the use of some popular phrase, some term of art, or intelligible figure of speech, in that case if the speaker's intention correspond with any one of those meanings, he cannot be charged with using falsehood, although it is possible that a hearer may take his words in a very different sense. It is true that using such an ambiguous method of speaking on ALL OCCASIONS is not to be approved of, though there are particular circumstances under which it may be reconciled with honour and justice. In communicating knowledge, for instance, there is no harm in using a metaphor, an irony, or an hyperbole, figures of speech, tending either to adorn or to elucidate a subject. There are cases too, where by this doubtful mode of expression it may be proper to avoid an urgent and impertinent question. There is an instance of the former kind in our Saviour's saying, that "our friend Lazarus sleepeth," where the disciples understood him, as if he were speaking of the refreshing rest of an ordinary sleep: and when he spoke of restoring the temple, which he meant his own body, he knew that the Jews applied what he said to the MATERIAL EDIFICE Of the Temple. In the same manner he frequently addressed the multitudes in parables, which they could not understand by barely hearing, without that docility of mind, and attention, which the subject required. Profane history too furnishes us with an example of the second kind, in the conduct of Vitellius, who, as Tacitus informs us, gave Narcissus doubtful and ambiguous answers, in order to avoid his urgent questions; as any explicit declaration might have been attended with danger.
On the other hand, it may happen to be not only censurable, but even wicked to use such a manner of speaking, where either the honour of God or the welfare of mankind is concerned, or indeed any matter, which demands explicit avowals, and open dealing. Thus in contracts every thing necessary to their fulfillment ought to be fully disclosed to those concerned. There is an apposite expression of Cicero, who says, that every degree of deception ought to be banished from all contracts, and there is in the old Athenian Laws a proverb, conformable to this, which says, there must be nothing, but open dealing in markets.
XI. In strictness of speech such ambiguity is excluded from the notion of a lie. The common notion of a lie therefore is something spoken, written, marked, or intimated, which cannot be understood, but in a sense different from the real meaning of the speaker. But a lie, in this stricter acceptation, having some thing unlawful in its very nature, necessarily requires that a distinction should be made between it and that latitude of expression already explained. And if this acceptation be properly considered, at least according to the opinion prevailing in all nations, it seems, that no other explanation of it is necessary to be given, except that it is a violation of the existing and permanent rights of the person, to whom a discourse, or particular signs, are directed. It is a violation of the rights of ANOTHER; for it is evident, that no one can utter a falsehood with a view to impose upon himself. The rights here spoken of are peculiarly connected with this subject. They imply that liberty of judgment, which men are understood, by a kind of tacit agreement, to owe to each other in their mutual intercourse. For this, and this alone is that mutual obligation, which men intended to introduce, as soon as they began to use speech, or other signs of equal import. For without such an obligation the invention of those signs would have been perfectly nugatory. It is requisite too, that at the time a discourse is made, such a right or obligation should remain in full force.
A right may indeed have existed and afterwards have become obsolete, owing to the rise or occurrence of some new right: which is the case with a debt, that may be released by acquittance, or nonperformance of a condition. It is farther requisite, to constitute a VIOLATION OF THIS RIGHT, that the ensuing injury should immediately affect the PERSON ADDRESSED: as in contracts, there can be no injustice, but what affects one of the parties, or persons concerned.
And perhaps under the head of this right, it may not be improper to assign a place to that TRUE SPEAKING, which Plato, following Simonides, classes with justice, in order to form a more striking contrast with that falsehood, so often prohibited in Scripture, by the name of false witness to, or against, our neighbour, and which Augustin, in defining a lie, calls an intention to deceive. Cicero also in his offices lays down truth, as the basis of justice.
The right to a discovery of the whole truth may be relinquished by the express consent of the persons, who are engaged in a treaty: the one may declare his intention not to disclose certain points, and the other may allow of this reserve. There may be also a tacit presumption, that there are just reasons for such reserve which may perhaps be necessary out of regard to the rights of a third person: rights which, in the common judgment of all sober men, may be sufficient to counterbalance any obligation in either of the persons engaged in the treaty to make a full disclosure of his views and sentiments. These principles, duly considered, will supply many inferences to reconcile any seeming contradiction in the opinions, that have been advanced.
XII. In the first place, many things may be said to madmen, or children, the LITERAL MEANING of which may not be true, without incurring the guilt of willful falsehood. A practice which seems to be allowed by the common sense of all mankind. Quintilian, speaking of the age of puerility, says, it is a period of life, when many useful truths may be taught in the dress of fiction. Another reason given is, that as children and madmen possess no perfect power of judging, impositions of that kind can do no injury to their rights, in such respects.
XIII. Secondly, when a conversation is addressed to any one, who is not thereby deceived, although a third person, not immediately addressed, may misconceive the matter, there is no willful falsehood in the case. No WILFUL FALSEHOOD towards the person addressed: because he feels no greater injury from thence, than an intelligent hearer would do from the recital of a fable, or the use of a metaphor, irony, or hyperbole in speech. It cannot be said that an injury is done to the person, who accidentally and cursorily hears a matter, and misconceives it: for being no way concerned, there is no obligation due to him. As he misconceives a thing addressed to ANOTHER, and not to HIMSELF, he must take upon his own head all the consequences of the mistake. For, properly speaking, the discourse, WITH RESPECT TO HIM, IS no discourse, but an inexpressive sound that may signify one thing as well as another. So that there was nothing wrong in the conduct of Cato the Censor, who made a false promise of assistance to his confederates, nor in that of Flaccus, who informed others that Aemilius had taken the enemy's city by storm, although the enemy were deceived by it. Plutarch mentions an instance of the same kind in the life of Agesilaus. Here no communication was made to the enemy, and the prejudice he sustained was an accidental thing no way unlawful in itself, either to be wished for or procured.
XIV. In the third place, whenever it is certain that the person, on whom a deception is practised, discovers that the intent of it was to do him a service; he will not feel it as a grievance, nor can it come -under the strict denomination of a lie or falsehood. It will be no more an INJURY, than it would be a THEFT in any one, presuming upon an owner's consent, to take something belonging to that owner, in order to convert it to his use in a very beneficial way. For in cases of notorious certainty, a PRESUMPTION may be taken for express consent. But it is evident that no man would CONSENT to receive an INJURY.
>From hence it appears, that a person is guilty of no treachery, who uses unfounded or fictitious motives to console a friend in distress, as Arria did to Paetus upon the death of his son, of which there is an account in Pliny's Epistles, or in a general, who in a perilous situation should avail himself of false intelligence, to encourage his troops, by which perhaps a victory might be gained.
It may be observed likewise, that the injury done to the freedom of judgment is, in such a case, of less consequence, because it is but momentary, and the real fact is soon discovered.
XV. There is a fourth case, which bears a near affinity to those above mentioned, and that is, when any one, possessing preeminent authority, orders another, in a subordinate capacity, to execute some device or stratagem, conducive either to his individual, or to the public welfare. Which Plato seems to have had particularly in view, in allowing those in authority to avail themselves of pretexts, or stratagems. The same writer is very correct in his notion of not making such a device a characteristic of that authority, which belongs to the supreme being. For all such devices, however justifiable they may be in CERTAIN CASES, strongly betray that imperfection, which is inseparable from all human systems.
The stratagem, which Joseph employed to obtain further discoveries without making himself known to his brethren, is much commended by Philo, as a mark of great policy, when, contrary to the convictions and feelings of his own mind, he accused them of being spies, and afterwards charged them with theft. It was by a stratagem of the same kind, that Solomon gave proof of his inspired wisdom, when he used the FICTITIOUS threat of dividing the living child in order to discover the real mother.
XVI. The fifth case, which allows a stratagem to be practised, is that, where it may be the ONLY means of saving the life of an innocent person, of obtaining some object of equal importance, or of diverting another from the perpetration of some horrid design. The heathen poet has given a beautiful illustration of this in his praises of Hypermnestra, whose conduct he calls "a splendid stratagem, ennobling the virgin to all posterity."
XVII. It is evident that many writers of acknowledged wisdom, and sober judgment, have carried the point farther than has been done in this treatise, in allowing the use of false representations to an enemy. In cases, where public enemies are concerned, they maintain, that it is lawful to deviate from those strict rules of avowing and disclosing all our intentions, which they prescribe, on all other occasions. Such is the opinion of Plato and Xenophon among the Greeks, of Philo among the Jews, and Chrysostom among Christians. It may not perhaps be amiss to cite, in this place, the message sent by the men of Jabesh Gilead to the Ammonites, by whom they were besieged, and also that of the prophet Elisha, and at the same time to mention the conduct of Valerius Laevinus, who boasted of having killed Pyrrhus.
The third, the fourth and fifth observations above made, may be illustrated from what is said by Eustratus, Archbishop of Nice, "An able and upright counsellor is not obliged to disclose the whole truth: for there may be occasions, when it may be necessary for him to recommend the means of deceiving an enemy, or to employ some stratagem towards a friend, where it may turn to his advantage."
XVIII. What has been said of false speaking must be understood as applied to affirmative declarations, which can be prejudicial to no persons, but public enemies: it can by no means be taken to include promises. For promises confer upon the person, to whom they are made, a peculiar right to claim their full performance. And this is a rule, which must take place, even between public enemies; a rule to which existing hostilities are not allowed to form an exception. It is a maxim proper to be enforced in TACIT, as well as in EXPRESS agreements: as when a parley or conference is demanded, there is always an IMPLIED promise, that both sides shall attend it with perfect safety. But these are points reserved for the discussion of another part of this treatise.
XIX. It will be necessary to repeat an observation made before, with respect to oaths, both of the affirmative and promissory kind, where it was maintained that they exclude all exceptions, all mental reservations towards the person, to whom they are made, being regarded not merely as a solemn transaction with that individual, but as a steadfast appeal to God. Such an appeal to the supreme being demands the performance of an oath, even if it gave the individual no right to the same.
At the same time it was observed, that a sworn declaration is not like one of any other kind, where an application of terms different from their usual meaning may supply the speaker with an excuse for evading their import. But truth requires every declaration and promise to be made in terms, which it is supposed that every man of integrity and clear judgment will understand, spurning at the impious thought, that men may be deceived by oaths, as children are by toys and trifles.
XX. Some nations and individuals indeed have rejected the use of those stratagems, which even the law of nature allows to be employed as a means of self-defence against an enemy. But they did so, not from any opinion of their unlawfulness, but from a noble loftiness of mind, and from a confidence in their own strength. Aelian has preserved a saying of Pythagoras, "that there are two things, in which man approaches nearest to God, in always speaking the truth, and doing good to others." Aristotle, somewhere in his Ethics, calls speaking truth, the freedom of a great soul, and Plutarch says, that falsehood is the qualification of a slave. But an adherence to truth, in simplicity of heart, is not the only duty required of Christians, in this respect, they are commanded to abstain from all vain discourse, as having for their example him, in whose mouth there was found no guile.
XXI. With respect to the actions of men, there is another rule which may properly come under this head, and that is, the unlawfulness of urging or persuading any one to do an unlawful act. For instance, no subject has a right to lift his hand against his sovereign, to deliver up a town without public authority, or to despoil his neighbour of his goods. It would be unlawful then to encourage the subject of an enemy, as long as he continues his subject, to do any of these acts. For the person, who urges another to do a wicked act, makes himself a partner in his guilt. Nor can it be received as a just answer, that urging a subject to the perpetration of such a deed is nothing more than employing the lawful means of destroying an enemy. For though it may be necessary and just to destroy him, if possible, yet that is not the way, in which it should be done. Augustin has well observed, that it makes no difference whether any one should commit a crime himself, or employ another as his instrument.
But employing the spontaneous offers of a deserter's not contrary to the laws of war, and is a very different action from that of seducing a subject from his allegiance.
[Note: Among other ideas raised in this immediately preceding chapter on "just" and "unjust" causes of war, top on the list is the idea or doctrine of “necessity.”]
Back to Bouvier’s 1856.
SELF-DEFENCE, crim. law. The right to protect one's person and property from injury.
8.-2d. A man may defend himself when no felony has been threatened or attempted; 1. When the assailant attempts to beat another and there is no mutual combat; as, where one meets another and attempts to commit or does commit an assault and battery on him, the person attacked may defend himself; and an offer or, attempt to strike another, when sufficiently near, so that there is danger, the person assailed may strike first, and is not required to wait until he has been struck. Bull. N. P. 18; 2 Roll. Ab. 547. 2. When there is a mutual combat upon a sudden quarrel. In these cases both parties are the aggressors; and if in the fight one is killed it will be manslaughter at least, unless the survivor can prove two things: 1st. That before the mortal stroke was given be had refused any further combat, and had retreated as far as he could with safety; and 2d. That he killed his adversary from necessity, to avoid his own destruction.
LAW OF NATIONS. The science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights. Vattel's Law of Nat. Prelim. Sec. 3. Some complaints, perhaps not unfounded, have been made as to the want of exactness in the definition of this term. Mann. Comm. 1. The phrase "international law" has been proposed, in its stead. 1 Benth. on Morals and Legislation, 260, 262. It is a system of rules deducible by natural reason from the immutable principles of natural justice, and established by universal consent among the civilized inhabitants of the world; Inst. lib. 1, t. 2, Sec. 1; Dig. lib. 1, t. 1, l. 9; in order to decide all disputes, and to insure the observance of good faith and justice in that intercourse which must frequently occur between them and the individuals belonging to each or it depends upon mutual compacts, treaties, leagues and agreements between the separate, free, and independent communities.
2. International law is generally divided into two branches; 1. The natural law of nations, consisting of the rules of justice applicable to the conduct of states. 2. The positive law of nations, which consist of, 1. The voluntary law of nations, derived from the presumed consent of nations, arising out of their general usage. 2. The conventional law of nations, derived from the express consent of nations, as evidenced in treaties and other international compacts. 3. The customary law of nations, derived from the express consent of nations, as evidenced in treaties and other international compacts between themselves. Vattel, Law of Nat. Prel.
3. The various sources and evidence of the law of nations, are the following: 1. The rules of conduct, deducible by reason from the nature of society existing among independent states, which ought to be observed among nations. 2. The adjudication of international tribunals, such as prize courts and boards of arbitration. 3. Text writers of authority. 4. Ordinances or laws of particular states, prescribing rules for the conduct of their commissioned cruisers and prize tribunal's. 5. The history of the wars, negotiations, treaties of peace, and other matters relating to the public intercourse of nations. 6. Treaties of peace, alliance and commerce, declaring, modifying, or defining the pre-existing international law. Wheat. Intern. Law, pt. 1, c. 1, Sec. 14.
4. The law of nations has been divided by writers into necessary and voluntary; or into absolute and arbitrary; by others into primary and secondary, which latter has been divided into customary and conventional. Another division, which is the one more usually employed, is that of the natural and positive law of nation's. The natural law of nations consists of those rules, which, being universal, apply to all men and to all nations, and which may be deduced by the assistance of revelation or reason, as being of utility to nations, and inseparable from their existence. The positive law of nations consists of rules and obligations, which owe their origin, not to the divine or natural law, but to human compacts or agreements, either express or implied; that is, they are dependent on custom or convention.
5. Among the Romans, there were two sorts of laws of nations, namely, the primitive, called primarium, and the other known by the name of secundarium. The primarium, that is to say, primitive or more ancient, is properly the only law of nations which human reason suggests to men; as the worship of God, the respect and submission which children have for their parents, the attachment which citizens have for their country, the good faith which ought to be the soul of every agreement, and the like. The law of nations called secundarium, are certain usages which have been established among men, from time to time, as they have been felt to be necessary. Ayl. Pand. B. 1, t. 2, p. 6.
As to the law of, nations generally, see Vattel's Law of Nations; Wheat. on Intern. Law; Marten's Law of Nations; Chitty's Law of Nations; Puffend. Law of Nature and of Nations, book 3; Burlamaqui's Natural Law, part 2, c. 6; Principles of Penal Law, ch. 13; Mann. Comm. on the Law of Nations; Leibnitz, Codex Juris Gentium Diplomaticus; Binkershoek, Quaestionis Juris Publici, a translation of the first book of which, made by Mr. Duponceau, is published in the third volume of Hall's Law Journal; Kuber, Droit des Gens Modeme de l'Europe; Dumont, Corps Diplomatique; Mably, Droit Public de l'Europe; Kent's Comm. Lecture 1.
Bonum necessarium extra terminos necessitatis non est bonum. Necessary good is not good beyond the bounds of necessity. Hob. 144.
Illud quod alias licitum non est necessitas facit licitum, et necessitas inducit privilegium quod jure privatur. That which is not otherwise permitted, necessity allows, and necessity makes a privilege which supersedes the law. 10 Co. 61.
Lex est ratio summa, quae jubet quae sunt utilia et necessaria, et contraria prohibet. Law is the perfection of reason, which commands what is useful and necessary and forbids the contrary. Co. Litt. 319.
Lex necessitatis est lex temporis, i.e. instantis. The law of necessity is the law of time, that is, time present. Hob. 159.
Necessarium est quod non potest aliter se habere. That is necessity which cannot be dispensed with.
Necessitas est lex temporis et loci. Necessity is the law of a particular time and place. 8 Co. 69; H. H. P. C. 54.
Necessitas excusat aut extenuat delicium in capitalibus, quod non operatur idem in civilibus. Necessity excuses or extenuates delinquency in capital cases, but not in civil. Vide Necessity.
Necessitas facit licitum quod alias non est licitum. Necessity makes that lawful which otherwise is unlawful. 10 Co. 61.
Necessitas inducit privilegium quoad jura privata. Necessity gives a preference with regard to private rights. Bacon's Max. REg. 5.
Necessitas non habet legem. Necessity has no law. Plowd. 18. See Necessity, and 15 Vin. Ab. 534; 22 Vin. Ab. 540.
Necessitas publica major est quam private. Public necessity is greater than private. Bacon's Max. in REg. 5.
Necessitas quod cogit, defendit. Necessity defends what it compels. H. H. P. C. 54.
Necessitas vincit legem. Necessity overcomes the law. Hob. 144.
Nihil magis justum est quam quod necessarium est. Nothing is more just that what is necessary. Dav. 12.
Necessity creates equity.
Probandi necessitas incumbit illi ui agit. The necessity of proving lies with [as in falls to, devolves upon] him who makes the charge.
Quod est necessarium est licitum. What is necessary is lawful.
Quod necessitas cogit, defendit. What necessity forces, it justifies. Hal. Pl. Cr. 54.
Semper necessitas probandi incumbit qui agit. The claimant is always bound to prove: the burden of proof lies on him.
NECESSITY. In general, whatever makes the contrary of a thing impossible, whatever may be the cause of such impossibilities,
2. Whatever is done through necessity, is done without any intention, and as the act is done without will, (q.v.) and is compulsory, the agent is not legally responsible. Bac. Max. Reg. 5. Hence the maxim, necessity has no law; indeed necessity is itself a law which cannot be avoided nor infringed. Clef des Lois Rom. h.t.; Dig 10, 3, 10, 1; Com. Dig. Pleader, 3 M 20, 3 M 30.
3. It follows, then, that the acts of a man in violation of law., or to the injury of another, may be justified by necessity, because the actor has no will to do or not to do the thing, he is a mere tool; but, it is conceived, this necessity must be absolute and irresistible, in fact, or so presumed in point of law.
4. The cases which are justified by necessity, may be classed as follows:
I. For the preservation of life; as if two persons are on the same plank, and one must perish, the survivor is justified in having thrown off the other, who was thereby drowned. Bac. Max, Reg. 5.
5.-2. Obedience by a person subject to the power of another; for example, if a wife should commit a larceny with her husband, in this case the law presumes she acted by coercion of her husband, and, being compelled, by necessity, she is justifiable. 1 Russ. Cr. 16, 20; Bac. Max. Reg. 5.
6.-3. Those cases which arise from the act of God, or inevitable accident, or from the act of man, as public enemies. Vide Act of God; Inevitable Accident and also 15 Vin. Ab. 534 Dane's Ab h.t.; 2 Stark. Ev. 713; Marsh. Ins. b. 1, c. 6, s. 3 Jacob's Intr. to. Com. Law. Reg. 74.
7.-4. There is another species of necessity. The actor in these cases is not compelled to do the act whether he will or not, but he has no choice left but to do the act which may be injurious to another, or to lose the total use of his property. For example, when a man's lands are surrounded by those of others, so that he cannot enjoy them without trespassing on his neighbors. The way which is thus obtained, is called a way of necessity. Gale and Whatley on Easements, 71; 11 Co. 52; Hob. 234; 1 Saund. 323, note. See 3 Rawle, R. 495; 3 M'Cord, R. 131; Id. 170; 14 Mass. R. 56; 2 B. & C. 96; 2 Bing. R. 76; 8 T. R. 50; Cro. Jac. 170; 2 Roll. Ab. 60; 3 Kent, Com. 423; 3 Rawle's R. 492; 1 Taunt. R. 279; 8 Taunt. R. 24; ST. R. 50; Ham. N. P. 198; Cro. Jac. 170; 2 Bouv. Inst. n. 1637; and Way.
[Note: The political and propagandized rhetoric justifying this war has, so far, proven insubstantial and without merit. Further, the traditional procedures for initiating war have proven woefully inadequate and not followed. Is there another motive justified by necessity that explains what the world is being subjected to, here?
There’s the present talk about the “money” issues, to the effect that the Iraqi policy was tending toward, or threatening toward, a conversion out of use of the dishonest system of weights and measures called “federal reserve notes” and into use of the dishonest system of weights and measures called “euros.” If this is substantiated, then the risk to the societies addicted to the “money” loaned into existence via the “federal reserve system” is enormous. And, even if we see the “federal government” as a private party, and thus see the war as a private war, or a mixed war, there would definitely be a necessity for “pre-emptive” self-defense. When the church secretary throws herself in front of the bulldozer bearing down on the 150-year-old church building, waving the Temporary Injunction paper just signed by the court, we see the civil equivalent of “pre-emptive” self-defense. As common sense tells us, there are certain problems for which prevention is the sole cure.
There is very little question that the largest single immediate beneficiary of shutting down the terrorist-potential of Saddam Hussein’s regime are the Israelis. In the same way that "defense of another" is a perfectly justifiable reason for using deadly force against an attack or the immediate (and justifiable) apprehension of such, “states” may act cooperatively for the exact same purposes. Thus, if there is exists a governmental or commercial or military necessity to engage in “pre-emptive” self-defense on the part of the Israelis, then those who act on their behalf as allies are fully justified in their acts of war. In the event common sense isn't adequate on this pont, this specific idea is set forth in Chapter 25 of Hugo Grotius’ discussion, which is quoted in full below.
That perspective clearly begs the question as to whether the so-called “suicide bombers” that have been glorified by all the propagandized coverage of them are truly extraterritorial attacks, or inside jobs along the lines of the mentality of the Oklahoma City Bombing, TWA Flight 800 and S-11. There’s also the question as to whether acts by the Iraqi’s against the Zionist-controlled Israelis would be considered acts of aggression or of self-defense.
However, regardless of the truthful answers to these inquiries, there can be no competent analysis of the matter that denies the conditions of perpetual war in the region, and that one of the largest single motivators and line-dividers is the topic of religion. In short, the fact of long-standing conditions of war between the Israelis and the Iraqis, the Zionists and the Muslims, cannot be disputed. Therefore, regardless of whether or not we agree with the reasons and bases for those perpetual conditions of war in that region, it is a stretch to assert that this war is not legal.
If we presume the formalites of public war, then the questions of legality cannot be avoided, and the answer is precisely as asserted by this highly qualified and internationally respected legal expert. But, in view of who the real parties in interest are, and, thus, in view of a private wer, as well as in light of the view of "defense of another," as this applies to, for and between nations, the "legality" jumps off the page at us. Further, how can a condition of war that’s been extant for centuries become illegal, simply because non-Middle Eastern "states" are now involved?
And, if the British People are waking up to the same governmental realities that the American People are waking up to, namely that what they used to think existed in the ways of apparent limitations on the exercise of authority no longer exist, then they may now be just as motivated to study into the Scriptural consequences for rebellion against our God. There has been, throughout all human history, one and only one reason for war. Since war is one of the Four Horsemen of the Apocalypse, along with, to round out the foursome, famines, pestilence/disease and “beasts” (kingdoms or governments raised up by God to be an iron rod of correction in His hand), what we learn is that war is a direct consequence from rebellion against the Supreme Law of God. One of the best ways to waive the “Hawaiian good luck sign” at our God is to employ a dishonest system of weights and measures, such as the “federal reserve note,” or the “euro.”
In sum, those who REALLY want to minimize this sort of international violence in the future will work now to employ an honest system of weights and measures for all purposes. The only way that a dishonest system of weights and measures can remain in force or use, “legally” speaking, is by and through a continual, perpetual, ever-present condition of “emergency” or “war.” This is why it is not a matter that the People on either side of the Atlantic can afford to wait on getting “permission” from their respective “legislative bodies” in order to implement. We simply must assert our common sense and just start trading with an honest system of weights and measures. Where the people (in the marketplace) lead, the leaders will follow. As this statement is witnessed to before God Almighty, every transaction, on either side of the Atlantic, that uses a dishonest medium of exchange constitutes one more “vote” in favor of perpetual war.
And, since the “new world order” cannot possibly be financed without the drug trade, either, it also behooves us to return to an honest system of weights and measures, so as to restabilize the economy, which will allow a substantial return to a one-parent- breadwinner households, in order that there be at least one parent to have some more time for the child-rearing, so that the kids don’t feel quite so abandoned as to need to turn to drugs or gangs in order to feel like they are a part of something bigger than themselves. God designed the family for the purpose of having an initial identity of, and being a part of, something larger than self, and the inflationary mediums of exchange have brilliantly and strategically targeted the Christian, God-fearing families with 100% accuracy. Inflationary, or fluctuating, mediums of exchange were the world’s first “smart bombs,” and they’ve been deadly accurate.
That is to say simply that we, as nations, on both sides of the Atlantic, are committing national suicide by addicting ourselves to these dishonest systems of weights and measures, and if it takes this sort of apparently unjustified and horrific international violence to get our attention on the matter, then this is what it takes. May we learn the lesson in time to prevent a recurrence.]
http://www.constitution.org/gro/djbp_225.htm
CHAPTER 25: The Causes of Undertaking War for Others.
Sovereigns may engage in war to support the rights of their subjects — Whether an innocent subject can be delivered up to an enemy to avoid danger — Wars justly undertaken in support of confederates upon equal, or unequal terms — For friends — or any men — Omission of this duty not blamable, from motives of self-preservation — Whether war may be justly undertaken in defence of another's subjects, explained by distinctions.
I. IN SPEAKING of belligerent powers, it was shewn that the law of nature authorises the assertion not only of our own rights, but of those also belonging to others. The causes therefore, which justify the principals engaged in war, will justify those also, who afford assistance to others. But whether any one presides over an household, or a state, the first and most necessary care is the support of his dependents or subjects. For the household forms but one body with the master, and the people with the sovereign. So the people of Israel under the command of Joshua took up arms in support of the Gibeonites, whom they had subdued. Our forefathers, said Cicero to the Romans, often engaged in war to support the rights of merchants, whose vessels had been plundered. The same Romans who would refuse to take arms for a people who were only allies, did not hesitate to assert by force of arms the injured rights of the same, when they became their subjects.
II. Yet the cause of any subject, although it may be a just cause, does not always bind sovereigns or rulers to take arms: but only when it can be done without inconvenience to all, or the greater part of their subjects. For the interests of the whole community, rather than those of particular parts, are the principal objects of a sovereign's care; and the greater any part is, the nearer its claims and pretensions approximate to those of the whole.
III. Some have maintained the position, that if an enemy requires the surrender of a citizen, however innocent, the demand must unquestionably be complied with, if the state is too feeble to resist it. This opinion is strongly controverted by Vasquez, but if we attend to his meaning more than his words, we shall find it to be the drift of his argument, that such a citizen ought not to be rashly abandoned, while there remains any possible hope of protecting him. For as a case in point, he alleges the conduct of the Italian Infantry, who, upon receiving assurances of protection from Caesar, deserted Pompey, even before he was reduced to absolute despair: a conduct which he deservedly reprobates in the strongest terms.
But whether an innocent citizen may be given up into the hands of an enemy to avoid imminent destruction, which would otherwise fall upon the state, is a point that HAS BEEN formerly, and is still disputed by the learned, according to the beautiful fable, which Domosthenes told of the wolves, who demanded of the sheep the surrender of the dogs, as the only terms of peace. The lawfulness of this is denied not only by Vasquez, but by one, whose opinions that writer condemns, as bearing a near approach to perfidy. Sotus holds it as an established maxim, that such a citizen is bound to deliver himself up: this Vasquez denies, because the nature of civil society, which every one has entered into for his own advantage, requires no such thing.
No conclusion can be drawn from hence, except that a citizen is not bound to this by any RIGHT STRICTLY SO CALLED, while at the same time the law of charity will not suffer him to act otherwise. For there are many duties not properly included in the idea of strict justice. These are regarded as acts of good will, the performance of which is not only crowned with praise, but the omission of them cannot escape censure.
Such is the complexion of the following maxim, that every one should prefer the lives of an innumerable and innocent multitude to his own personal and private welfare. Cicero, in defending Publius Sextius, says, "If I were taking a voyage with my friends, and happening to meet with a fleet of pirates, they threatened to sink our little bark, -unless the crew surrendered me as the victim to appease their fury, I would sooner throw myself into the deep, than suffer my companions out of their affection to me to encounter sure death, or even imminent danger.
But after establishing this point, there remains a doubt, whether any one can be COMPELLED to do what he is BOUND to do. Sotus denies this, and in support of his argument quotes the case of a rich man, who, though bound from motives of charity to supply the wants of the needy, cannot be compelled to do so. But the transactions of equals with each other, must be regulated upon principles very different from those that regulate the mutual relations of sovereigns and subjects. For an equal cannot compel an equal to the performance of any thing, but what he is strictly bound by law to perform. But a superior may compel an inferior to the performance Of OTHER duties besides those of PERFECT OBLIGATIONS; for that is a right peculiarly and essentially belonging to the nature of superiority. Therefore certain legislative provisions may be made, enacting the performance of such duties, as seem to partake of the nature of benevolence. Phocion, as it is mentioned in Plutarch's lives, said that the persons, whom Alexander demanded, had reduced the commonwealth to such distress, that if he demanded even his dearest friend Nicocles, he should vote for delivering him up.
IV. Next to subjects, and even upon an equal footing with them, as to claims of protection, are allies, a name including, in its consequences and effects, both those, who have formed a subordinate connection with another power, and those who have entered into engagements of mutual assistance. Yet no such compacts can bind either of the parties to the support or prosecution of unjust wars. And this is the reason, why the Lacedaemonians, before they went to war with the Athenians, left all their allies at liberty to decide for themselves upon the justice of the quarrel. To which an additional observation may be made, that no ally is bound to assist in the prosecution of schemes, which afford no possible prospect of a happy termination. For this would be defeating the very end of alliances, which are contracted from motives of public advantage, and not for a participation in ruin. But any power is obliged to defend an ally even against those, with whom it is already connected by subsisting treaties, provided those treaties contain no express condition prohibiting such defence. Thus the Athenians might have defended the Corcyraeans, IN A JUST CAUSE, even against the Corinthians, their more ancient allies.
V. A third case is that, where assistance has not been expressly promised to a friendly power, and yet is due on the score of friendship, if it can be given without inconvenience.
Upon this principle Abraham took arms in defence of his kinsman Lot: and the Romans charged the Antiates to commit no acts of piracy upon the Greeks, as being a people of the same kindred with the Italians. It was no unusual thing with the Romans to begin, or at least to threaten to begin wars not only in support of allies, to whom they were bound by treaty, but in support of any friendly powers.
VI. The last and most extensive motive is the common tie of one COMMON NATURE, which alone is sufficient to oblige men to assist each other.
VII. It is a question, whether one man is bound to protect another, or one people another people from injury and aggression. Plato thinks that the individual or state not defending another from intended violence is deserving of punishment. A case for which provision was made by the laws of the Egyptians.
But in the first place it is certain that no one is bound to give assistance or protection, when it will be attended with evident danger. For a man's own life and property, and a state's own existence and preservation are either to the individual, or the state, objects of greater value and prior consideration than the welfare and security of other individuals or states.
Nor will states or individuals be bound to risk their own safety, even when the aggrieved or oppressed party cannot be relieved but by the destruction of the invader or oppressor. For under some circumstances it is impossible successfully to oppose cruelty and oppression, the punishment of which must be left to the eternal judge of mankind.
VIII. Though it is a rule established by the laws of nature and of social order, and a rule confirmed by all the records of history, that every sovereign is supreme judge in his own kingdom and over his own subjects, in whose disputes no foreign power can justly interfere. Yet where a Busiris, a Phalaris or a Thracian Diomede provoke their people to despair and resistance by unheard of cruelties, having themselves abandoned all the laws of nature, they lose the rights of independent sovereigns, and can no longer claim the privilege of the law of nations. Thus Constantine took up arms against Maxentius and Licinius, and other Roman emperors either took, or threatened to take them against the Persians, if they did not desist from persecuting the Christians.
Admitting that it would be fraught with the greatest dangers if subjects were allowed to redress grievances by force of arms, it does not necessarily follow that other powers are prohibited from giving them assistance when labouring under grievous oppressions. For whenever the impediment to any action is of a personal nature, and not inherent in the action itself, one person may perform for another, what he cannot do for himself, provided it is an action by which some kind service may be rendered. Thus a guardian or any other friend may undertake an action for a ward, which he is incapacitated from doing for himself.
The impediment, which prohibits a SUBJECT from making resistance, does not depend upon the nature of the OCCASION, which would operate equally upon the feelings of men, whether they were subjects or not, but upon the character of the persons, who cannot transfer their natural allegiance from their own sovereign to another. But this principle does not bind those, who are not the liege-subjects of that sovereign or power. Their opposition to him or the state may sometimes be connected with the defence of the oppressed, and can never be construed into an act of treason. But pretexts of that kind cannot always be allowed, they may often be used as the cover of ambitious designs. But right does not necessarily lose its nature from being in the hands of wicked men. The sea still continues a channel of lawful intercourse, though sometimes navigated by pirates, and swords are still instruments of defence, though sometimes wielded by robbers or assassins.
End of Book II
Helpful terms to know regarding the Law of War.
Continuing with Bouvier’s 1856.
ADHERING. Cleaving to, or joining; as, adhering to the enemies of the United States.
4. If war be actually levied, that is, a body of men be actually assembled for the purpose of effecting by force a treasonable enterprise, all those who perform any part, however minute, or however remote from the scene of action, and who are leagued in the general conspiracy are to be considered as traitors. 4 Cranch. 126.
[Note: The point for including this definition isn’t to focus on or even remotely suggest that we’re dealing with “Treason.” Why that’s the case is a very different matter, to be taken up in a different discussion. This term just happens to have an excellent definition of the concept. It is an act of war to assemble (clearly suggesting that more than one person need be involved) for the purpose of effecting by force some result. Here, to include treason, which is the focus of the term “adhering,” also suggests that the force be intended to effect some governmental purpose or change.]
ANTI-MANlFESTO. The declaration of the reasons which one of the belligerents publishes, to show that the war as to him is defensive. Wolff, 1187. See Manifesto.
ARTICLES OF CONFEDERATION.
5. "By subsequent articles, congress was invested with the sole and exclusive right and power of determining on peace and war, unless in case of an invasion of a state by enemies, or an imminent danger of an invasion by Indians; of sending and receiving ambassadors; entering into treaties and alliances, under certain limitations, as to treaties of commerce; of establishing rules for deciding all cases of capture on land and water, and for the division and appropriation of prizes taken by the land or naval forces, in the service of the United States of granting letters of marque and reprisal in times of peace; of appointing courts for the trial of piracies and felonies committed on the high seas; and of establishing courts for receiving and finally determining appeals in all cases of captures.
10. "Such were the powers confided in congress. But even these were greatly restricted in their exercise; for it was expressly. provided, that congress should never engage in a war; nor grant letters of marque or reprisal in, time of peace; nor enter into any treaties or alliances; nor coin money or regulate the value thereof; nor ascertain the sums or expenses necessary for the, defence and welfare of the United States, nor emit bills nor borrow money on the credit of the United States nor appropriate money; nor agree upon the number of vessels of war to be built, or purchased; or the number of land or sea forces to be raised; nor appoint a commander-in-chief of the army or navy; unless nine states should assent to the same. And no question on any other point, except for adjourning from day to day, was to be determined, except by vote of the majority of the states.
13. "Certain prohibitions were laid upon the exercise of powers by the respective states. No state, without the consent of the United States, could send an embassy to, or receive an embassy from, or enter into, any treaty with any king, prince or state; nor could any person holding any office under the United States, or any of them, accept any present, emolument, office – or title, from any foreign king, prince or state; nor could congress itself grant any title of nobility. No two states could enter into any treaty, confederation, or alliance with each other, without the consent of congress. No state could lay any imposts or duties, which might interfere with any proposed treaties. No vessels of war were to be kept up by any state in time of peace, except deemed necessary by congress for its defence, or trade; nor any body of forces, except such as should be deemed requisite by congress to garrison its forts, and necessary for its defence. But every state was required always to keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and to be provided with suitable field-pieces, and tents, and arms, and ammunition, and camp equipage. No state could engage in war without the consent of congress, unless actually invaded by enemies, or in danger of invasion by the Indians. Nor could any state grant commissions to any ships of war, nor letters of marque and reprisal, except after a declaration of war by congress, unless such state were infested by pirates, and then subject to the determination of congress. No state could prevent the removal of any property imported into any state to any other state, of which the owner was an inhabitant. And no imposition, duties, or restriction, could be laid by any state on the Property of the United States or of either of them.
ARTICLES OF WAR. The name commonly given to a code made for the government of the army. The act of April 10, 1806, 2 Story's Laws U. S. 992, contains the rules and articles by which the armies of the United States shall be governed. The act of April 23, 1800, 1 Story's L. U. S. 761, contains the rules and regulations for the government of the navy of the United States.
BAR, actions. A perpetual destruction or temporary taking away of the action of the plaintiff. In ancient authors it is called exceptio peremptorid. Co. Litt. 303 b Steph. Pl. Appx. xxviii. Loisel (Institutes Coutumieres, vol. ii. p. 204) says, "Exceptions (in pleas) have been called bars by our ancient practitioners, because, being opposed, they arrest the party who has sued out the process, as in war (une barriere) a barrier arrests an enemy; and as there have always been in our tribunals bars to separate the advocates from the judges, the place where the advocates stand (pour parler) when they speak, has been called for that reason (barreau) the bar."
BLOCKADE, international law. The actual investment of a port or place by a hostile force fully competent to cut off all communication therewith, so arranged or disposed as to be able to apply its force to every point of practicable access or approach to the port or place so invested.
2. It is proper here to consider, 1. by what authority a blockade can be established; 2. what force is sufficient to constitute a blockade; 3. the consequences of a violation of the blockade.
3. - 1. Natural sovereignty confers the right of declaring war, and the right which nations at war have of destroying or capturing each other's citizens, subjects or goods, imposes on neutral nations the obligation not to interfere with the exercise of this right within the rules prescribed by the law of nations. A declaration of a siege or blockade is an act of sovereignty, 1 Rob. Rep. 146; but a direct declaration by the sovereign authority of the besieging belligerent is not always requisite; particularly when the blockade is on a distant station; for its officers may have power, either expressly or by implication, to institute such siege or blockade. 6 Rob. R. 367.
4. - 2. To be sufficient, the blockade must be effective, and made known. By the convention of the Baltic powers of 1780, and again in 1801, and by the ordinance of congress of 1781, it is required there should be a number of vessels stationed near enough to the port to make the entry apparently dangerous. The government of the United States has, uniformly insisted, that the blockade should be effective by the presence of a competent force, stationed and present, at or near the entrance of the port. 1 Kent, Com. 145, and the authorities by him cited; and see 1 Rob. R. 80; 4 Rob. R. 66; 1 Acton's R. 64, 5; and Lord Erskine's speech, 8th March, 1808, on the orders in council, 10 Cobber's Parl. Debates, 949, 950. But "it is not an accidental absence of the blockading force, nor the circumstance of being blown off by wind, (if the suspension and the-reason of the suspension are known,) that will be sufficient in law to remove a blockade." But negligence or remissness on the part of the cruizers stationed to maintain the blockade, may excuse persons, under circumstances, for violating the blockade. 3 Rob. R. 156 .) 1 Acton's R. 59. To involve a neutral in the consequences of violating a blockade, it is indispensable that he should have due notice of it: this information may be communicated to him in two ways; either actually, by a formal notice from the blockading power, or constructively by notice to his government, or by the notoriety of the fact. 6 Rob. R. 367; 2 Rob. R. 110; Id. 111, note; Id. 128; 1 Acton's R. 6 1.
4. - 3. In considering the consequences of the violation of a blockade, it is proper to take a view of what will amount to such a violation, and, then, of its effects. As all criminal acts require an intention to commit them, the party must intend to violate the blockade, or his acts will be perfectly innocent; but this intention will be judged of by the circumstances. This violation may be, either, by going into the place blockaded, or by coming out of it with a cargo laden after the commencement of the blockade. Also placing himself so near a blockaded port as to be in a condition to slip in without observation, is a violation of the blockade, and raises the presumption of a criminal intent. 6 Rob. R. 30, 101, 182; 7 John. R. 47; 1 Edw. R. 202; 4 Cranch, 185. The sailing for a blockaded port, knowing it to be blockaded, is, it seems, such an act as may charge the party with a breach of the blockade. 5 Cranch, 335 9 Cranch, 440, 446; 1 Kent, Com. 150. When the ship has contracted guilt by a breach of the blockade, she may be taken at any time before the end of her voyage, but the penalty travels no further than the end of her return voyage. 2 Rob. R. 128; 3 Rob. R. 147. When taken, the ship is confiscated; and the cargo is always, prima facie, implicated in the guilt of the owner or master of the ship and the burden of rebutting the presumption that the vessel was going in for the benefit of the cargo, and with the direction of the owners, rests with them. 1 Rob. R. 67, 130 3 Rob. R. 173 4 Rob. R. 93; 1 Edw. It 39. Vide, generally, 2 Bro. Civ. & Adm. Law, 314 Chit. Com. Law, Index, h. t.; Chit. Law of Nations, 128 to 147; 1 Kent's Com. 143 to 151; Marsh. Ins. Index, h. t.; Dane's Ab. Index, h. t.; Mann. Com. B. 3, c. 9.
BOOTY, war. The capture of personal property by a public enemy on land, in contradistinction to prize, which is a capture of such property by such an enemy, on the sea.
2. After booty has been in complete possession of the enemy for twenty-four hours, it becomes absolutely his, without any right of postliminy in favor of the original owner, particularly when it has passed, bona fide, into the hands of a neutral. 1 Kent, Com. 110.
3. The right to the booty, Pothier says, belongs to the sovereign but sometimes the right of the sovereign, or the public, is transferred to the soldiers, to encourage them. Tr. du Droit de Propriete, part 1, c. 2, art. 1, §2; Burl. Nat. and Pol. Law, vol. ii. part 4, o. 7, n. 12.
CANNON SHOT, war. The distance which a cannon will throw a ball. 2. The whole space of the sea, within cannon shot of the coast, is considered as making a part of the territory; and for that reason, a vessel taken under the cannon of a neutral fortress, is not a lawful prize. Vatt. b. 1, c. 23, s. 289, in finem Chitt. Law of Nat. 113; Mart. Law of Nat. b. 8, c. 6, s. 6; 3 Rob. Adm. Rep. 102, 336; 5 Id. 373; 3 Hagg. Adm. R. 257. This part of the sea being considered as part of the adjacent territory, (q. v.) it follows that magistrates can cause the orders of their governments to be executed there. Three miles is considered as the greatest distance that the force of gunpowder can carry a bomb or a ball. Azun. far. Law, part 2, c. 2, art. 2, 15; Bouch. Inst. n. 1848. The anonymous author of the poem, Della Natura, lib. 5, expresses this idea in the following lines: Tanto slavanza in mar questo dominio, Quant esser puo d'antemurale e guardia, Fin dove puo da terra in mar vibrandosi Correr di cavo bronzo acceso fulinine. Far as the sovereign can defend his sway, Extends his empire o'er the watery way; The shot sent thundering to the liquid plain, Assigns the limits of his just domain. Vide League.
CAPITULATION, war. The treaty which determines the conditions under which a fortified place is abandoned to the commanding officer of the army which besieges it.
2. On surrender by capitulation, all the property of the inhabitants protected by the articles, is considered by the law of nations as neutral, and not subject to capture on the high seas, by the belligerent or its ally. 2 Dall.
CAPTIVE. By this term is understood one who has been taken; it is usually applied to prisoners of war. (q.v.) Although he has lost his liberty, a captive does not by his captivity lose his civil rights.
CAPTOR, war. One who has taken property from an enemy; this term is also employed to designate one who has taken an enemy.
2. Formerly, goods taken in war were adjudged to belong to the captor; they are now considered to vest primarily, in the state or sovereign, and belong to the individual captors only to the extent that the municipal laws provide.
3. Captors are responsible to the owners of the property for all losses and damages, when the capture is tortious and without reasonable cause in the exercise of belligerent rights. But if the capture is originally justifiable, the captors will not be responsible, unless by subsequent misconduct they become trespassers ab initio. i Rob. R. 93, 96. See 2 Gall. 374; 1 Gall. 274; 1 Pet. Adm. Dee. 116; 1 Mason, R. 14.
CAPTURE, war. The taking of property by one belligerent from another.
2. To make a good capture of a ship, it must be subdued and taken by an enemy in open war, or by way of reprisals, or by a pirate, and with intent to deprive the owner of it.
3. Capture may be with intent to possess both ship and cargo, or only to seize the goods of the enemy, or contraband goods which are on board: The former is the capture of the ship in the proper sense of the word; the latter is only an arrest and detention, without any design to deprive the owner of it. Capture is deemed lawful, when made by a declared enemy, lawfully commissioned and according to the laws of war; and unlawful, when it is against the rules established by the law of nations. Marsh. Ins. B. 1, c. 12, s. 4.See, generally, Lee on Captures, passim; 1 Chitty's Com. Law, 377 to 512; 2 Woddes. 435 to 457; 2 Caines' C. Err 158; 7 Johns. R. 449; 3 Caines' R. 155; 11 Johns. R. 241; 13 Johns. R.161; 14 Johns. R. 227; 3 Wheat. 183; 4 Cranch, 436 Mass. 197; Bouv. Inst. Index, h. t.
CARTEL,war. An agreement between two belligerent powers for the delivery of prisoners or deserters, and also a written challenge to a duel.
2. Cartel ship, is a ship commissioned in time of war, to exchange prisoners, or to carry any proposals between hostile powers; she must carry no cargo, ammunitions, or implements of war, except a single gun for signals. The conduct of ships of this description cannot be too narrowly watched. The service on which they are sent is so highly important to the interests of humanity, that it is peculiarly incumbent on all parties to take care that it should be conducted in such a manner as not to become a subject of jealousy and distrust between the two nations. 4 Rob. R. 357. Vide Merl. Rep. b. t.; Dane's Ab. c. 40, a. 6, 7; Pet. C. C. R. 106; 3 C. Rob. 141 C. Rob. 336; 1 Dods. R. 60.
CASUS FOEDORIS. When two nations have formed a treaty of alliance, in anticipation of a war or other difficulty with another, and it is required to determine the case in which the parties must act in consequence of the alliance, this is called the casus foederis, or case of alliance. Vattel, liv. 3, c. 6, 88.
COMPTROLLERS. There are officers who bear this name, in the treasury department of the United States.
6. The duties of the second comptroller are to examine all accounts settled by the second, third and fourth auditors, and certify the balances arising -thereon to the secretary of the department in which the expenditure has been incurred; to counter-sign all the warrants drawn by the secretary of the treasury upon the requisition of the secretaries of the war and navy departments, which shall be warranted by law; to report to the said secretaries the official forms to be issued in the different offices for disbursing public money in those departments, and the manner and form of keeping and stating the accounts of the persons employed therein, and to superintend the preservation of public accounts subject to his revision. His salary is three thousand dollars per annum. Act of March 3, 1817, s. 9 and 15; Act of May 7, 1822.
[Note: CONGRESS fits in sequence here, and as is blatantly apparent and confessed by way of the lawsuit by the “congress-people” against the “president” in hopes of stopping this war, neither Congress nor “congress” has declared war, here. The absence of a congressional Declaration of War IS NOT a reason to assert that this “war” is illegal. It simply means that we have to understand MUCH BETTER who the parties are that are in armed conflict here.]
DECLARATION OF WAR. An act of the national legislature, in which a state of war is declared to exist between the United States and some other nation.
2. This power is vested in congress by the constitution, art. 1, s. 8. There is no form or ceremony necessary, except the passage of the act. A manifesto, stating the causes of the war, is usually published, but war exists as soon as the act takes effect. It was formerly usual to precede hostilities by a public declaration communicated to the enemy, and to send a herald to demand satisfaction. Potter, Antiquities of Greece, b. 3, c. 7; Dig. 49, 15, 24. But that is not the practice of modern times. In some countries, as England, the, power of declaring war is vested in the king, but he has no power to raise men or money to carry it on, which renders the right almost nugatory.
4. The public proclamation of the government of a state, by which it declares itself to be at war with a foreign power, which is named, and which forbids all and every one to aid or assist the common enemy, is also called a declaration of war.
EMBARGO, maritime law. A proclamation, or order of state, usually issued in time of war, or threatened hostilities, prohibiting the departure of ships or goods from some, or all the ports of such state, until further order. 2 Wheat. 148.
2. The detention of ships by an embargo is such an injury to the owner as to entitle him to recover on a policy of insurance against "arrests or detainments." And whether the embargo be legally or illegally laid, the injury to the owner is the same; and the insurer is equally liable for the loss occasioned by it. Marsh. Ins. B. 1, c. 12, s. 5; 1 Kent, Com. 60 1 Bell's Com. 517, 5th ed.
3. An embargo detaining a vessel at the port of departure, or in the course of the voyage, does not, of itself, work a dissolution of a charter party, or the contract with the seamen. It is only a temporary restraint imposed by authority for legitimate political purposes, which suspends, for a time, the performance of such contracts, and leaves the rights of parties untouched, 1 Bell's Com. 517; 8 T. R. 259; 5 Johns. R. 308; 7 Mass. R. 325, 3 B. & P. 405-434; 4 East, R. 546-566.
ENEMY, international law. By this term is understood the whole body of a nation at war with another. It also signifies a citizen or subject of such a nation, as when we say an alien enemy. In a still more extended sense, the word includes any of the subjects or citizens of a state in amity with the United States, who, have commenced, or have made preparations for commencing hostilities against the United States; and also the citizens or subjects of a state in amity with the United States, who