Part 5: National Laws


The rules which nations should observe, or do observe with one another, cannot be treated so accurately as private or public law.

  • But with respect to the laws of nations, we cannot mention any one regulation:
  • Where there is no supreme legislative power nor judge to settle differences, we may always expect uncertainty and irregularity.
  • The laws of nations take place in peace or war.

  • The laws or rules observed in wartime shall be considered in the following order:
    1. What is a just cause of war, or quando liceat bellare in Latin ?
    2. What is lawful for one nation to do to another in wartime, or quantum liceat in bello?
      1. We shall consider:
        1. the differences between the ancient and modern governments, and
        2. the great modifications of modern governments.
    3. What is due to neutral nations from the belligerent powers.
    4. The rights of ambassadors between different nations.

  • Chapter 1: When is War Lawful?

    First, quando liceat bellare ?

  • In general, whatever is the foundation of a proper lawsuit may be a just occasion of war.
  • The sovereign is bound to demand satisfaction for the following offences:
  • This is because the government intends to protect its members from foreign enemies.
  • In the same way, a breach of contract is a very just occasion of war.
  • The following may be the cause of a war:
  • There is only one exception to the general rule.

  • In this case, it is difficult to determine whether a war would be reasonable or not.
  • The introduction of quasi-contract was the highest stretch of equity.
  • In England, if you repair a man’s house in his absence, you must trust to him to pay for it because you have no action by law.
  • Except for this, everything which is the foundation of a proper law suit, will also make war just and reasonable.

  • Chapter 2: What is Lawful in War?

    [Second,] quantum liceat bello?

  • How far a nation may push the resentment of an injury against the nation which has injured them, is not easy to determine.
  • In general, resentment is necessary and just when an injury:
  • There are a few cases in which it is lawful even without satisfaction being demanded.
  • In the same way, when one nation seems to be conspiring against another, though it may have done no real injury, it should be obliged to:
  • Though this satisfaction is not demanded, when the King of Prussia saw his dominions about to be overwhelmed by the Elector of Saxony and the Queen of Hungary, it was quite right in him to be beforehand with them, and to take possession of their territories.
  • On the other hand, if it were only a debt that is due, it would be as unreasonable to go to war without demanding satisfaction.
  • Suppose a subject of any government is injured.

  • On what principle of justice do we take their goods from them, and distress them in all ways?
  • Mr. Hutcheson very ingeniously accounts for this.

  • By the Roman law, if any of those slaves had done any damage to another, the owner must:
  • Similarly, a nation must:
  • This reasoning is excessively ingenious.
  • A man can do with his slave as he pleases.
  • But in most cases, a nation cannot either.
  • A government is often maintained, not for the nation’s preservation, but its own.
  • How then can a nation be guilty of an injury which it could not do?
  • This superior degree of humanity was introduced during the time of Popery.

  • The Pope was considered as the common father of Christendom.
  • The Holy War was then undertaken by most of the European princes.
  • From these causes, moderns behave differently from the ancients with regard to prisoners.
  • The same policy which makes us not so apt to go to war makes us also more favourable than before, after an entire conquest.

  • It was on this account that the Romans had often to populate a country anew, and then send out colonies.
  • When they always fought with swords, their rage and fury were raised to the highest pitch.

  • Words: 2,316
    Next: Part 5, Chapter 3