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advantages, which it inherits in common with all the works of Bynkershoek, it has the intrinsical merit of perspicuity. He has suffered his matter to distribute itself into chapters, and there is, of course, no confusion in the arrangement. After a definition of war, which with its explanation, occupies the first chapter, his subject naturally divides itself into two parts; the rights and duties of belligerents, and the rights and duties of neutrals. Under the first head he inquires, whether a previous declaration is necessary in order to make a war lawful, and concludes with Thomasius*, that it is a mere act of humanity, which can never be demanded as a right. He then examines the various questions of the capture and recapture of moveables, what right to immoveables can be acquired by the fortune of war, how far it is lawful to confiscate the credits and actions of an enemy, and whether it is, in any case, proper to pursue him with force after he has taken shelter in a neutral territory. This division extends through seven chapters. He begins the examination of the second division of his subject by determining who are neutrals, and what are contraband goods. He then treats of the right of neutrals to trade with places which are beseiged or blockaded, of the goods of neutrals found in the ships of enemies, and the goods of enemies found in the ships of neutrals. He then discusses successively the right of postliminy, which he supposes to extend no farther than to the territory of those, who are actually engaged in the war; the punishment of pirates, the privileges of privateers, the propriety of insuring the property of an enemy, and the right of enlisting soldiers in a neutral territory. The twenty-third chapter is devoted to a contested point in the Dutch federal constitution, and the twenty-fourth to reprisals. The last is composed of miscellaneous remarks, which though important, could not properly be included in any other chapter.
This plan is more full and comprehensive than that of any writer on the subject, whom we have ever seen. Its execution is marked with the same ability, which distinguishes its design. The principles advanced by Bynkershoek, and the arguments by which those principles are supported, are, in general, correct and acute. He has fallen into more erl'ours in the first part, where he treats of the rights and duties
* Ad Huberum de Jur. Civ. 1. 3. 9 4. c. 4.
of belligerents, than in the remainder. The cause of this may be found in an important doctrine, which he assumes in the first chapter ; but, whose effects may be traced through the whole division : that “war is of so general a nature, that it knows no measure or bounds.” Generalis nempe belli conditio est, ut ad mensuram non geratur. This position is too general to be true, and extends farther than he himself anticipated, for he afterwards excepts perfidy from the list of lawful hostilities. Egoomnem dolum permitto sola perfidia excepta. But, is there only one exception from this ferocious maxim ? It is decidedly the opinion of Bynkershoek, that there is but one, and when he.afterwards descends from principles to their exemplification, he expressly declares, that he considers poison, assassination and wild-fire to be lawful methods of annoying an enemy; cum liceat veneno, cum liceat percussore immisso et igne factitio.* In this sentence, and the one next succeeding, he has assumed as an established principle, what never has been, and we trust never will be granied, that war is always made upon an enemy for the purpose of extermination, and as the end is universal destruction, it is immaterial what means are used. Bellum alicui faci-' mus, qui putamus cum per injuriam nobis illatum, sui suorumque perniciem meruisse, isque armorum nostrarum finis est, quem, qua forma adsequaris, quid refert? If the principle were correct, we should not controvert the inference; but those writers on the law of war, whom we are accustomed to reverence as oracles, have intrenched themselves on quite different ground. Grotiust and Vattelt have established their
* We cannot conjecture on what authority Mr. Du Ponceau has translated this important passage “ of poison, of missile weapons, of fire arms." “Percussor," certainly means an assassin, or a bravo, and when joined with “immissus,” which signifies sent against, it should undoubtedly be rendered a hired assassin. If citations to establish this point are neces. sary, one may be found in Tac. Ann. 1. 3. c. 16. Nec illum sponte extinc. tum, verum percussore iminisso. There are two more in Seutonius. Vit. Ner. c. 37. and Vit. Sulp. Galb. c. 19. The meaning of “igne factitio" is not so clear, because factitio is not a legitimate word. We presume, however, that Bynkershoek referred to the tremendous wild-fire of the Turks and Grecians in the fourteenth century, πυρ θαλασσιον υγρον μετα Bportns x46 XATT V8. At any rate, it is a palpable absurdity to join “fire arms” which are unquestionably fair weapons, with assassination and poison, when it is evident the author meant to propose extreme cases,
^ De Jur. Bel. & Pac. I. 3. c. 4. 51. L. 3. c. 8. $ 155,
systems on the more mild and generous principle, that war should be conducted with as little ferocity as possible, and, that the only end proposed should be the defence of what we rightfully possess, or the recovery of what has been wrongfully wrested from us, and they require many concessions from the belligerent in the name of justice, which Bynkershoek regards as the voluntary sacrifices of generosity. His doctrines are yet more formidable in their remote, than in their imme. diate consequences. An attempt at assassination compels the prince, who is attacked, to prevent a repetition by the torture or execution of his captives and he must proportion his rigour to the exigences of the case. This will of course excite reta- liation, and thus the horrours of war are to be indefinitely con. tinued and increased, because an unlawful instrument has been resorted to intemperately. Poison is yet more odious and terrible. It is more treacherous and inevitable, and, therefore, more generally detested. We would not by this kind of reasoning be supposed to carry our principles of generosity to such an extravagant height as to deny, with some,* all artifice in the conduct of war. It is enough, that we renounce those instruments, and avoid those methods in the pursuit or defence of our rights, which have a tendency to cast a more portentous gloom upon what is already the most appalling of national calamities.
We have dwelt with considerable emphasis on this point, because it appears to be the source of several errours, which occur in the first eight chapters of the treatise. As a consequence of this maxim, Bynkershoek holds it to be entirely unnecessary to utter a manifesto before the commencement of hostilities, because he regards the enemy as a convict on whom sentence is to be executed, without the least ceremony. This question has been agitated a long time; but, it seems at last to be tacitly acknowledged by invariable usage, that a decla. ration is necessary. It is true, that in modern times this formality is principally preserved for reasons very different from those for which it was originally instituted ; that it is now used, rather as the means of domestick excitement, than as a
* The Roman senate, even after the dagger and the bowl had long been domesticated in the palace of the Caesars, replied to the proposal of Adgandesterius, to poison Arminius; non fraude neque occultis, sed palam et armatum populum Romanum hostes suos ulcisci. Tac. Ann. 1. 2. c. 88.
defiance to the enemy; but as long as the effect is produced, we should be satisfied, and rejoice that a motive is offered which will induce even violence to regard the rights of humanity. The custom is certainly ancient, for Selden* traces it among the Jews. Many † have supposed it indispensable, and that all seizures or captures, made during an undeclared war, are mere piracies. Grotius and Vattel maintain the propriety and necessity of a declaration ; but go no farther. Grotius requires a declaration that the consequent hostilities may appear to be the deliberate act of the state, and not the unauthorized violence of individuals. Vattels thinks we owe it to humanity, to make this last appeal from the justice to the fears of the enemy, so as if it be possible to bring him to our terms without bloodshed, or at least convince him of our inflexible determination to support our rights. |
As a corollary from the same principle, Bynkershoek derives the right of the conqueror “ to do any thing he pleases with the vanquished,” in victųm victori liceut omnia. c. 3. It is very remarkable, that a writer of the eighteenth century should advance this doctrine. The times are long since passed, when the victor refused quarter to his enemy ;9 and the Mussulman alone, in modern days, claims even the right of enslaving him. No one is hardy enough to defend the hang
* De Jur. Nat. et Gent. 1. 6. c. 13. + Heineccius, p. 791,
* Ut certo constaret non privato ausu sed voluntate utriusque populi aut populi capitum, geri bellum. De. J. Bel. et Pacis, l. 3. c. 3. f 11.
SL. 3. c. 4. 5 51. '
ll We cannot persuade ourselves, with Mr. Du Ponceau, that the an. cients generally neglected to declare war, for if this were the fact, why did they maintain a privileged order, who had no other employment than to adjust national differences, and ceremoniously to denounce war on their enemies. Among the Greeks the Κηρυκες Διoς αγγελοι ηδε και ανδρων proceeded to the enemy's frontier, and hurled a spear into his territory in to. ken of defiance. The Romans, in imitation of the Greeks, devoted a number of priests, collegium fecialium, Liv. 1. 36. c. 3. to the same duties. They retained the ceremony of throwing the bloody spear, and used, besides, a form of speech on the occasion, called clarigatio, and when this had . been pronounced, and not till then,
Tum certare odiis tum res rapuisse licebat. T'irg. Vide Polyb. 1. 4. c. 4, and Liv. I. 36. c. 3 and 4,
I Burlamaqui, p. 4. c. 6. $7.
ing of captives, merely because they were not ransomed.* Quia non redimebantur.
In chap. 7. he says ; si merum jus belli sequamur, etiam immobilia possent vendi. This is not the opinion of recent jurişts. It is now decided, that only the rent of real property owned by an enemy, shall be confiscated, because, by permitting foreigners to purchase and possess estates, they are in this respect admitted into the number of subjects. Only one reason can be assigned, why even rent should be seized and that has been given by Vattel,t “to hinder the remittance of it to the enemy's country.”
We were compelled to enter into details in noticing the preceding errours, because the learned translator did not undertake the task of commenting on his author, until the first ten chapters had irrevocably passed the press. The few faults in those which remain are generally exposed by Mr. Du Ponceau, who has thus relieved us from the most ungrateful part of our task, that of controverting opinions supported by a name so respectable as Bynkershoek's.
In the course of his discussion of neutral rights, he starts several questions, which though acknowledged to be of the first importance, are yet sub judice. On the great question, whether free ships shall make free goods,t he supports the belligerent principle ; and, on the equally important subject of individual expatriation, he defends the right of the citizen, in general, to transfer his allegiance; but, at the same time, recognizes the right of the supreme power in the state to prohibit him in case of necessity, and Grotius thinks it may be done, whenever emigration threatens to become extensive. Among the miscellaneous principles in the last chapter, he maintains one || with considerable vehemence, which within a . few years has been warmly canvassed by the ablest politicians in Europe and America. The forcible seizure of the Danish fleet will never be forgotten, and although if examples are to be counted and not weighed, this will be reckoned but one, yet it is a powerful one, and goes far towards establishing the general principle. Notwithstanding the outcry which was raised on that occasion, and which is now supported by the authority of Bynkershoek and Du Ponceau, if the subject is examined with temper, it will be found that no doctrines were * Bynk. c. 3. † Law of Nations, b. 3. c. 5. 576. Cap. 14. S Cap. 22.
ņ Cap. 25. 91.