refufal is general, and urged negatively, without reafons to juftify the denial. If it is special, that is, if it is fupported by arguments in defence of their right to the thing taken, it is incumbent on the other party to invalidate thofe arguments or if he perceives that the enemy attempts to impofe on him by fubtlety, he may demand peremptory fatisfaction, and declare war conditionally, on failure of reparation: or in such case, he may direct reprisals, which, as our author obferves, is a kind of imperfect war. But the contest remains in a flate of debate, till a declaration is made on one fide or the other; and while it continues in fuch state of debate, all hoftilities are unnatural and unlawful. To illuftrate this point farther. We must observe, that there may be often just grounds of war, where no actual force has been previoufly used to provoke it. For inftance-Let us suppose a cafe, where two nations are at peace with each other, and that one of them is in poffeffion of territories, to which the other claims right. Certainly Reafon fays, that before the claimant can purfue the recovery of his right by force of arms, a declaration is necessary to make the war on his fide lawful, unless in cafe of fuch a general refufal as is above mentioned. Again, a juft caufe of war may accrue, in confequence of the enemy's having neglected to perform fome article in a treaty of peace, &c. Neverthelefs, Reafon does not allow the commencement of hoftilities, before a declaration of war. Nothing can be more irrational than to try extremities in the first inftance. The performance of the article on the enemy's part may have become impoffible, by the act of God. Therefore, a demand of the performance fhould be made, and in case of refufal a declaration should enfue; unless the refufal be of that general and negative nature above defcribed, in which cafe a declaration is not neceffary. The reafon why it is not neceffary in this inftance is, because by such a general and abfolute refufal, without fpecifying any reafons to juftify non-compliance, the enemy in fact waves the debate of his right, and trusts to his force, whereby he fets you at defiance. Upon the whole, the queftion, Whether a declaration is neceflary to make a war lawful,' depends entirely on the circumftances of the cafe, and the fituation of the parties. The best general rule by which we can determine it, feems, in our judgment, to be this. Where the fafety and interest of the ftate is immediately endangered by the act of the enemy, there a declaration is not neceffary: in moft, if not all other cafes, it is indifpenfably requifite, at least in REASON.

Our author having confidered this matter on the grounds of reafon and law, proceeds in the next place to exemplify the cuftoms of the European nations; from whence he produces a

Cc 4

number

1

number of inftances to prove, that wars have been waged without any previous declaration. He clofes the enumeration very juftly, by expofing the conduct of the French, who committed various hoftilities in America, and actually invaded Minorca in the Mediterranean, before any folemn declaration of war on either fide. He adds, that a commencement of hoftilities is not the actual beginning of the war; but the aggreffors are the firft beginners of the war. By aggreffion, fays he, is underftood every act which is diametrically oppofite to the fenfe of a treaty of peace.'

This perhaps is confidering the matter too ftrictly. Every act done in oppofition to the fenfe of a treaty, does not make the doer fuch an aggreffor as is above defcribed. It seems neceflary, for that purpofe, that the act be done hoftili animo. The fenfe of treaties is expounded by the help of human reason, which is different in various men, and perhaps fallible in moft. It is not the doing an act therefore in contravention to a treaty, but the perfifting in or avowing fuch act, and refusing satisfaction, after remonftrances made against it, which, in reafon, proves it to have been done with an hoftile intent. Indeed, wherever fuch intent is evident, it is fufficient to denote the wrong-doer to be the aggreffor, and to juftify hoftilities without any previous declaration. A manifeft defign, for inftance, of invading another prince's dominions, though no hoftilities have been actually commenced, is, nevertheless, a beginning of war, and renders a declaration on the other fide unneceffary. Of this opinion is Puffendorf, and other able writers. But, as we obferved in our introduction, in this and fome other particulars, the author feems to have been misled by a partial attention to prefent circumstances between us and our enemies, and inftead of judging the cafes in queftion by the teft of impartial reafon, he seems, now and then, to have fuited his reafon to the complexion of thofe cafes.

In the following chapter, our author treats of reprifals. On this fubject he reasons with great judgment and perfpicuity. As reprifals, fays he, are an act of hoftility, and often the prelude or forerunner of a compleat and perfect war; 'tis plain that, in civil fociety, none but the fovereign can lawfully use this right, and that the fubjects can make no reprisals but by his order and authority. Befides it is proper that the wrong or injury done us, which occafions the reprisals, fhould be clear and evident; and that the thing in difpute be of great confequence; for if the wrong is dubious, or of no importance, it would be equally unjuft and dangerous to proceed to this extremity, and to expofe ourselves to all the calamities of an open war. Neither ought we to come to reprifals, before we have tried, by the

ordinary

Ordinary means, to obtain juftice for the injury committed; for this purpose we must apply to the prince whofe fubject has done us the injuftice, and if the prince takes no notice, or refufes fatisfaction, we may then make reprisals in order to obtain it.

In a word, we must not have recourse to reprisals, till after all the ordinary means of obtaining our due have been tried and failed. So that, for inftance, if a fubordinate magiftrate has refused us the juftice we afk, we are not permitted to use reprifals before we apply to the fovereign himself, who will perhaps do us juftice. But if he likewife refufes, we may either detain the fubjects of a foreign ftate, if they detain ours; or we may feize their goods and effects. But whatever just reason we may have for making reprisals, we can never directly, and for that reafon alone, put to death thofe whom we have feized upon, but only fecure them and not use them ill, till we have obtained satisfaction; so that all that time they are to be confidered as hoftages.'

Thefe obfervations appear to be highly reafonable and unexceptionable. But why the writer fhould think all thefe previous applications for juftice and reparation neceffary to ground our right of making reprifals, which is but an imperfect itate of war; and at the fame time contend, that perhaps even a friendly demand' is not neceffary to precede the waging of a perfect war, we own ourselves at a lofs to conceive.

In the enfuing chapters, the author confiders the nature of war between enemies; and the rights which war gives over the perfons of the enemy.-When moveable goods, and particularly fhips, belonging to the enemy, become the property of the captors. In this laft chapter, he confiders the right to facred plunder. The right of fpoil or plunder, fays he, extends generally to all things belonging to the enemy; and the law of nations, properly fo called, does not exempt even facred things, that is, things confecrated either to the true God, or to falfe Deities, and defigned for the ufe of religion.

The practices and cuftoms of nations do not, indeed, agree in this refpect; fome having permitted the plunder of things facred and religious, and others having looked upon it as a criminal profanation: but whatever the ufes and cuftoms of different people are, they cannot conftitute the primitive rule of right. In order therefore, to be affured of the right of war in regard to this article, we must have recourse to the law of nature and nations,

• It

It is then to be observed firft, that things facred, differ not in themselves from those we call profane. The former differ from the latter, only by the religious ufe to which they were intended. But this application or ufe does not give the things the quality of holy and facred, as an intrinfic and indelible character, of which they cannot be deprived.

And next, that things thus confecrated, always belong either to the state, or to the fovereign; and there is no reason why the prince, who has devoted them to religious purposes, may not afterwards apply them to the ufes of life; for they, as well as all other public things, are at his disposal.

It is therefore a grofs fuperftition to believe that by the confecration, or deftination of these things to the service of God, they, as it were, change mafter, and belong no more to men; that they are withdrawn from commerce, and that the property of them paffes from men to God. This is a dangerous fuperftition, and owing to the ambition of the clergy.

We could wifh, however, that the writer had given a fhort account of the practices and cuftoms of nations in this respect, which might have afforded matter of curious and entertaining information. The holy war which the Athenians waged against the Phocians, and which induced them, to their own deftruction, to court the interpofition of the crafty Philip, might, among others, have ferved the purpose of illustration.

We pass over the fucceeding chapters, which our author treats in a very judicious, clear, and conclufive manner; and come to that where he confiders the ftate of war as to neutrals.' In this chapter, he makes a juft diftinction between confederates and allies, and those who are fimply neutrals. If two, fays he, with whom I am allied, make war against ftrangers, I will perform to each, what I am bound by treaty to perform: but if they make war against each other, fhall I affift them both, or only one, and which fhall I prefer? The conteft upon this head is as great amongst the writers on the fubject, as amongst the nations themselves. Gentilis has given various opinions of different perfons; and has alfo added his own. Grotius allo has given the fame opinion, without any difference. Suppofing both parties engaged in the war, to be our allies, we are to prefer him who has the jufter caufe, and to act against him who is the aggreffor; and here, perhaps, the justice or injuftice of the war may properly come in queftion; because I am bound to perform the compact I have made by my alliance, and to affist those with whom I have contracted fo to do. But, because fuch contract is equal with both parties; it would be abfurd to fupply men to each of them; fince it would be fighting againft

myfelf,

myfelf, which is an inconvenience often attending the hiring out forces. If I fupply them with money, arms, ammunition, and provifions; it ferves only to protract the war, which it is my duty to endeavour to put an end to. I have, therefore, no other method of judging how I fhall juftly perform the contract which I have made, than by judging of the justice of the • war. Whether therefore my allies act against ftrangers, or against one another, the principal confideration with me is, which of them has the jufter cause for making war. If each of them makes war against ftrangers, I will perform to each what I owe by treaty; but if one of them attacks the other, I will affift neither. If two who are my allies attack each other; I will, according to my treaty, fide with him who has the juster caufe, and I will be the judge of this matter. But this arifes from neceffity, because I have no other method of determining my choice to whom I may in juftice give affiftance, as it would be abfurd and contradictory to my duty to fupply both parties.

But if I have promised auxiliaries to a confederate and ally: and he has a difpute with my friend, who is fimply my friend, and not my ally: the promise ought certainly to be made good, becaufe, fo far as relates to that promife, I and my ally constitute one state, to be defended by mutual affiftance. But here again is a neceffity for the former diftinction; whether my ally has received the injury, or is the aggreflor: if he is the fufferer, I fhould fulfil my promife; if the aggreffor, I ought not. There is a tacit condition, annexed to my agreement for supplying the auxiliaries; viz. that his caufe be just; for I am not bound to affift my ally in an unjuft caufe. Whether the caufe be just, or unjust, muft neceflarily be determined by the promifing party. After all, it would be better if this matter was more clearly expreffed in treaties between nations; which in general fimply exprefs, that one ally fhall fend to the other ally, who is attacked, fo many, or fo many land or fea-forces, and nothing more. But when a treaty fays, he who is attacked, no other interpretation can be put upon it, than that the ftipulated affistance is to go to that ally who is unjustly provoked or attacked; who is fought by the enemy, not who himself feeks the enemy. Nor will that expreffion, who is attacked, admit of any other clear explanation for if he who is attacked, hath before done an injury, whereby he hath given juft caufe for the war, it is not neceffary in fuch cafe, to fend him any affiftance. It would, indeed, be plainer and better to say, that they WHO HAVE BEEN ATTACKED IN AN UNJUST WAR fhould have the promised auxiliaries; whereby they would go to those who have not given caufe for the war,'

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