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more than ever natural to man, both ration abroad, as many wary of late civilized and savage; which, as this have stolen out in undeclared, unacexpression intimates, is the grand knowledged trespasses, and some in business of life; for which all clandestine wrongs, perpetrated with previous peace is but a period of one hand and denied with the other; preparation, and all subsequent re- it will be as well not to embarrass pose but a breathing spell and inac- the practical usages of states, with tion; to the carrying on of which a contests about these subsidiary invast majority of civilized men are cidents; but leaving them for the regularly educated; and concerning introductory chapters of civilians, to which statesmen and publicists have receive the declarations of war, as, composed their finest dissertations, in spite of our reasoning, they geThe great powers of refined Europe nerally will come;" from the adaseem to be so bent on the perfection mantine throats of thundering'artilof this state of nature, that all their lery. efforts are exerted to

Without, therefore, any time spent “ Rend and deracinate upon this head, we proceed to oThe unity and married calm of states;"

thers; merely taking occasion, in who seem to have decreed a divorce transitu, to point out a capital misa, à mensa, thoro et vinculis, and to take of Mr. Byrikershoek’s printer have executed articles of perpetual in this chapter, which is unsuspectstrife and separation.

ingly adopted and propagated by

Mr. Lee; and now, for the first time, CHAPTER II.

rectified by Mr. Duponceau. In this Whether civilized nations are second chapter Bynkershoek quotes bound to declare war, is another of a passage from Dion Chrysostoin, the questions involved in the gene- where he says that wars are more fre. neral doctrine of the law of nations, quently waged without previous dewhich, however proper to be dis- clarations; and in the following pages eussed in this chapter, and some evidently by a misprint, quotes the times handled by statesmen, is not same passage in an opposite sense. much to the purpose of our main But Lee, perceiving the dilemma, and inquiry. Perhaps Bynkershoek leaves at a loss how to escape it, like an it on its best footing, viz. that they experienced antiquarian, calls in the ought, but are not bound, to pro- Greeks and Romans to his aid, mulgate a solemn annunciation. If, though Bynkershoek in this passage, like Idæus and Talthybius, the sa- makes no mention of them whatever; cred heralds in the Iliad, or the fe- and asserts that they, as he undercial messengers of the Romans, mo- stands from Chrysostom aforesaid, dern ambassadours could not only de- waged war for the most part by de. clare, but suspend and terminate claration-Lee, ni 21. Duponceau, wars, this point would become iné venturing to leave the Greeks and teresting to us all. But as the pro- Romans to themselves, and yet de clamations and manifestos, which sirous of explaining the seeming generally precede or attend modern contradiction, inserts a note in which hostilities, are intended to give po- the whole difficulty is satisfactorily pularity at home, not note of prepa. cleared up. *

• In the original, this passage from Dion Chrysostom is quoted so as to mean, that war is most frequently DECLARED (bella indicta eni to incisov, ut plurimùm) but from the context it appears evidently to have been an errour of the press. The words of Chrysostom are: πόλεμοι ως επί το αλείςον 'ΑΚΗΡΥΚΤΟΙ γίγνονται. Wars are most frequently, made WITHOUT a publick declaration, and so our author translates them very correctly above, page 7.

CHAPTER III.-IV. or's iise, passes on, almost without The period when Bynkershoek noticing this principle, to the subwrote may seem to be too mo ordinate inquiry that follows. dern for supporting the right to de. A quarrel between Louvois and stroy or enslave prisoners of war, Le Notre, respecting one of the win- . Yet when we reflect on what are dows in the palace of Versailles, termed the rights of war, however which Louis the fourteenth found it shocking the principle may appear, necessary to quell, by reproving the must it not be conceded as one of former, instigated that mortified the incidents of that summum jus, great minister of war to plunge his which, as the translator properly master into the endless hostilities observes, is very near akin to that followed, by way of amusing barbarism? The custom of ex- his mind and securing his own place. changing prisoners has so gene. And no one contested the right to ra- rally superseded those of enslaving page and lay waste the Palatinate,

and destroying them, and so many however the unnecessary cruelty of offices of civility and reciprocal that ferocious stroke of Louvois' polikindness have been engrafted on cy may be deprecated or detested. the duties, so called, of war, that Henry the fifth, of England, during we have brought ourselves almost to the battle of Agincourt, did not hebelieve, that an enemy has no right sitate to put all his prisoners to over prisoners beyond that of deten- death, on the plea of necessity; nor tion; an opinion undoubtedly un- do we doubt his right, though we founded, or the blood of André shudder at the deed. would rest on the head of Washing. Let us not be understood to re. ton, and all the examples of reta. commend the poisoning of fountains, llating severity, which every war or massacre of captives. But we do visits on the conflicting parties, venture an opinion, in conformity would be nothing better than so ma- with the text before us, that nations, ny murders. Is not this seeming before they rush upon a state of war, ameliora ion calculated to perpetu- should be prepared to endure its ate bloodshed, by rendering war a essential hardships. And we do wish science, full to be sure of peril and to be understood as reprobating stratagem, but nevertheless contain those corrupt relaxations which have ed within certain ascertained bounds obtained lately between the great of wrong-doing, a captivating pro. European belligerents, by which the fession to the young and ambitious, rigours of war are frittered away as and the surest means of a bad minis. between themselves, and their whole ter's support ? Would it not con- edge and operation, turned upon tribute more to the infrequency, and, neutrals. We are not anxious, at at least comparative, prevention of this time of day, to contest, ab ovo, wars, if their rights were exercised the rights of war; or tu assert that with less mitigated rigour; and war- neutrals acquire immunities not ring nations made to feel, in their theirs in time of peace. But we must direst effects, the pressure and pri- reprobate all corruptions, which tend vations of that state of barbarism, of to make a quasi peace between the savage nature, brute force, and belligerents, and a quasi war be. suspended civilisation, which, after tween them and neutrals; in which, all that can be said, done, or writ- like a quarrelling man and wife, the ten, war is and ever will be ?

belligerents coalesce to destroy the As regards property there is no neutrel who interferes with his imdispute. Therefore, in the fourth partial assistance. It will be perchapter, the author, taking it for ceived that, in advance of its progranted that all things by con- per place, we are alluding to what is quest ara converted to the conquer, called the license trade, that has prevailed lately to so enormous an would be absurd to suppose, that amount between France and En. any people would venture with their gland, notwithstanding the flagra- persons and goods to places, where tion of war; that monstrous anomaly they were sure to have the one imin the usages of nations and laws of prisoned and the other confiscated: war, which prohibits and confiscates wherefore in declarations of war, a neutral for attempting what a bel- and proclamations which follow ligerent may perpetrate with impu- em,' mutual commerce is gencnity, and without disguise; that best rally forbid.” This retaliation, of all and boasted issue from the law of measures of state necessity, is that to gleaning, the only one we know of, in which the poet's description of a which the supreme wants of neces- monster, as applied by Bynkershoek sity are allowed to overcome the in- to state necessity in general, most stitutions of society. Let empires emphatically belongs, make peace when they can no long- “Monstrum horrendum, informe, ingens, er hear the weight of war; or, at all

cui lumen ademptum.” events, let not the indefeasable and In his 5th, 6th, 7th, and 8th chap: primary rights of neutrality fall a ters, Bynkershoek treats with his victim to the subsequent and doubt- usual talent and impartiality, of reful aggressions of war, unless the captures, of hostile territorial occulatter are maintained with such ri. pancy, of confiscations, and of hostigorous exactitude as to entitle belli- lities in neutral ports or territories; gerents to the rigorous exercise of and the translation proceeds with their rights on neutrals. Let not the the same spirit and accuracy. But former claim both the bone and the we pass rapidly over these divisions, flesh.

to come to those of higher interest To such, if any there be, who ad- which follow, wherein the rights of vocate the right, as well as the po- neutrality, as clashing with those of licy of the late British orders, and war, contraband, and blockade, are French decrees, we reconimend investigated. what Bynkershoek, with an inde- The fearful improvements of late pendence of sentiment, as lauda- years in the arts of war and deble, as his arguments are irre-struction, which have distinguished sistable, urges against the Dutch the old world, both by sea and land; decree of the 27th November, 1966, and the no less prodigious growth and the French decree of the 17th of commercial prosperity and mari. September, 1672, which unnatural time enterprise, proceeding from the ebullitions of hostile anger he unhe- new, have forced the conflicting docsitatingly disapproves, though they trines of both war and neutrality inoriginated with his own government, to so many new views, that it is matbecause without actual enforcement ter of curious speculation to exathey were illegal and void; because mine the pure but little fountains, they fell alike on the innocent and from which they rose, and from offensive: for, says this great and just whence they have now spread over publicist, “ RETALIATION IS ONLY the whole face of the globe. From

EXERCISED ON who the author before us, one of the HAS COMMITTED THE INJURY, AND most copious and unadulterated of

COMMON FRIEND; AND these sources, we perceive that the HE, WHO

NO INJURY, time is not very distant when solOUGHT NOT, IN USTICE, TO SUF diers were not comprehended in the FER.” Even Mr. Lee, not foreseeing list of contraband, that has lately the juncture that has arisen, ho- swelled to such an enormous roll; and nestly declares that “commerce, by that those same powers, which now the very nature of war, ceases be- inhibit the shipment of an ounce of tween powers at open emnity; for it lead or a coil of cordage, as a vio.









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tent, breach of the rights of war, states-general adopted this doctrine, when formerly did not presume to com

on the ud of March 1640, the states is.' plain, when men, of flesh and blood, that agreeubly to ancient custom and to the

sued an edict on their report, declaring and equipped with arms, were trans- law of neutrulity, it was lawful for neutrala ported to fight in the array of one

to fight for us or for our enemies as they belligerent against another. Neutra- miglit think proper And when the Spas lity had not even a name. Language; niards, on the 30th of March 1639, issued had no term to express it; not be an edict declaring that if any of the peo. cause it did not exist, but because ple of Liege had enlisted in the service of its immunities were

the states-general, they should return so very latitu

within one month, having first taken an dinary, as to be almost coextensive: oath that they would no more fight against with the superfluities, which a na-- Spain or the house of Austria, otherwise, tion at peace could furnish to one at every pardon would be denied to them, a

similar edict was made in retaliation on

the 3d of March 1640, in the name of the "I call neutrals (non hostes*] those states-general, of which I remember that who take part with neither of the bellige- it was to be in force as long as that of rent powers, and who are not bound to

Spain, which, in the said edict of the 3d either by any alliance. If they are

of March 1640, was represented as an in. bound, they are no longer neutrals, but novation, entirely devoid of reason, and allies. Grotius has called them middle stigmatized in these words: men (medii] 1. 3. De J. B. ac P. c. 9. sonable edict-such novelty und unreasona. Of these it is asked what is lawful for blenessso long as the Spuniards shall conthem to do or not do between two belli. tinue in force their unreasonable edict, &c.' gerent parties ? Every thing, perhaps it Such also was the opinion of certain will be said, that it was lawful for them

Dutch citizens, expressed in the states of to do or to omit doing when they were all Holland, on the 26th of February 1684, at peace; for the state of war does not

when they urged the sending of auxiliary seem to extend farther than to those who troops to the Spaniards, to be employed are at war with each other. Does reason

against the French, which they said could require, will you say, that the enemies of be done without injury to the peace then our friends should be considered as our

subsisting with France: Salvå pace et amiown enemies? If not, why shall not our

citiá cum Francis. friends carry to their friends, though they “ And indeed, what I have just now be our enemies, those things which they said is not only conformable to reason, but. were in the habit of carrying to them be- to the usage admitted by almost all na. fore? nay, arms, men, and every thing tions. For although it be lawful for us to else? It militates, indeed, against our carry on trade with the enemies of our own advantage, but we are not consider. friends, usage has so ordered it, as I shall ing what is advantageous, but what is rea. show more at large in the next chapsonable. The injury suffered is alone the ter, that we should not assist either of cause of the war, and it is evident that them with those things by which the war that injury has no effect beyond the person against our friends may be carried on. It of him who has suffered it, except, that is therefore unlawful to carry to either if he is a prince, it extends also to all his party those things which are necessary subjects, but not to those who are not sub- in war, such as cannon, arms, and what ject to his dominion. Whence it must is most essentially useful, soldiers; nay, follow, that my friend's enemy is not my soldiers are positively excepted by the enemy, but that the friendship between treaties of various nations, and sometimes us subsists precisely as it did before the also materials for building snips, which

miglit be used against our friends, have “ We find that the counsellors of the been excepted. Provisions likewise are



* It is remarkable that there are no words in the Latin language which precisely answer to the English expressions, neutral, neutrality; for neutralis, neutralitas, which are used by some modern writers, are barbarismis, not to be met with in any classical author. These make use of the words amici, medii, paceti, which are very inadequate to express what we understand by neutrals, and they have no substantive whaiever" (that we know of) for neutrality. We shall not here inquire into the cause of this deficiency. Such an inquiry would carry us too far, and does not comport with the object of this work.

VOL. y.


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often excepted, when the enemies are be- a principle, in itself so plain, that sieged by our friends, or are otherwise

two unprejudiced minds can hardly pressed by famine. The law has very pro- differ about it. Yet it is the construcperly forbidden our supplying the enemy tive extension of this principle, so with any of those things; for it would be, as it were, making war against our friends. clear when confined to its legitimate Therefore if we consider the belligerents bounds, so clearly a wrong when exmerely as our friends, we may lawfully ceeding them, that has unhinged the carry on trade with them, and carry to established laws and usages of nathem any kind of merchandise, but if we

tions and of ages. Bynkershoek, in consider them as the enemies of our friends, those merchandises must be ex.

the main, supports those sentiments, cepted, by means of which they might that are most prevalent on this injure those friends; and this reason is point, for the theory is too plain for stronger than the former; for in whatever

a cavil. manner we may assist one against the other, we do interfere in the war, which “ I have said in a former chapter, that is not consistent with the duties of neu. by the usage.of nations, and according to trality. From these reasons may be seen the principles of natural reason, it is not which had the most justice on its side, the lawful to carry any thing to places that edict of the Spaniards of the 30th of are blockaded or besieged. Grotius is of March 1639, or that of the states-general the same opinion; for he reprobates the of the 3d of March, 1640, of both of carrying any thing to blockaded or bewhich I have spoken above."

sieged places, if it should impede the

execution of the belligerent's lawful de. As respects contraband, Bynker- signs; and if the carriers might have shoek is very explicit and very rea

known of the siege or blockade, as in the sonable. In truth, it is not his least closely blockaded, and when a surrender

case of a town actually invested or a port merit, that, without seeming to con

or a peace is already expected to take cede any thing to either party, he place."* Indeed, it is sufficient that there mostly recommends that medium, be a siege or blockade to make it unlawful which ought to be unobjectionable to carry any thing, whether contraband to both.

or not, to a place thus circumstanced;

for those who are within may be compel" It is denied that the subject of an

led to surrender, not merely by the direct ally or confederate, trading with a com.

application of force, but also by the want nion enemy, may be punished by us, or

of provisions and other necessaries. If, his property condemned; because it is therefore, it should be lawful to carry to said that every one is bound only to obey them what they are in need of, the bellithe laws of his own sovereign, and there.

gerent might thereby be compelled to fore that an ally can have no control

raise the siege or blockade, which would over him. Bat reason, usage, and publick would be unjust. And because it cannot

be doing him an injury, and therefore utility, are opposed to that decision."

be known what articles the besieged may But the belligerent assertion, want, the law forbids, in general terms,

carrying any thing to them; otherwise which by its enormity, has swallow disputses and altercations would arise to ed up ail others, is that of blockade; which there would be no end."

* Si juris mei erecutionem rerum subvectio impedierit, idque scire potuerit qui adderit, UT si oppidum obsessum tenebam, si portus clausos, & jam deditio aut pax expectabatur, tenebitur ille mihi de damno culpă dato, ut qui debitorem carceri exemit, aut fugam ejus in meam fraudem instruxit; si dumnum nondùm dederit, sed dare voluerit, jus erit rerum retentione eum cogere ut de futuro caveat, obsidibus, pignoribus, aut alio modo. If he (the carrier) should by his supplies impede the execution of any lawful designs; as if I kept a town besieged or a port closely blockaded, and I already expected a surrender or a peace; he will be liable to me for the damage occasioned by his fault, in like manner as he who should make my debtor escape out of prison, or aid him in his flight to defraud me of my right: and if he has not occasioned to me any actual damage, but has been willing to do it, in that case, it will be lawful by the detention of his goods, to compel him to give security for the future, by hostages, pledges, or in some other way. Grot. de J. B. ac. P. 1. 3. c. 1. 5 5. n. 3.

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