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Following the major division of the Catholic Church in the Protestant Reformation, the hope of peace being brought to Europe through Church authority faded irrevocably as sporadic religious wars ravaged the continent for more than a century, and the secular rulers no longer followed Church authority in regard to war. However, after the development of humanism, legal scholars began to propose that laws regulate the behavior of nations and princes in their often bellicose relationships with each other. European exploration and colonization of other continents also brought up the need for principles of international law. To emphasize this need I am preceding the discussion of the international law pioneers with the story of Bartolomé de Las Casas and his peacemaking efforts during the horrendous Spanish conquest of the new world.
Bartolomé de Las Casas was born in 1484 and grew up in Seville, where he witnessed the triumphant return of Christopher Columbus in 1493. His father and three uncles accompanied Columbus on his second voyage; his father returned in 1498 on a ship loaded with slaves, one of whom he gave to Bartolomé during his college years at Salamanca. The slave was returned to Española in accordance with the royal order of 1500. Bartolomé accompanied his father to Española in 1502. After the massacre at Jaragua, Governor Ovando gave Bartolomé a slave. Las Casas later described the misery and early deaths of the slaves who worked in the mines. He went to Spain to assist Bartolomé Columbus and was ordained a priest at Rome in 1507. After studying canon law for two years, Las Casas sailed back to Española with Admiral Diego Columbus, who gave him land in Cibao with a repartimiento (allotment) of Indians. In 1513 he joined Diego Velazquez in the conquest of Cuba under Panfilo de Narvaez, trying to pacify the natives. Las Casas observed Spaniards massacre three thousand natives at Caonao after they had brought food to share with the Christians. He left Narvaez and was given an encomienda near the port of Xagua. Once he was even refused the sacrament by a Dominican, because he held slaves.
While preparing a sermon in 1514 and reading the Wisdom of Sirach 34:18-22 in which denying the laborer his wages is compared to shedding the blood of a neighbor, Las Casas had a change of heart, realizing that the treatment of the natives was unjust and tyrannical. He informed Velazquez that he was renouncing his Indians, and he began to give sermons against the robbery and wrongs of the Spaniards, telling his congregation that it was sinful to make the Indians serve them. Las Casas returned to Spain in 1515 with Antonio Montesinos to report to King Fernando on the evils he witnessed. He presented his Memorial de remedios to Cardinal Cisneros on how Spaniards and Indians could live together. This visionary document was passed from regent Adrian of Utrecht to Erasmus and Thomas More, who applied its ideas in his Utopia.
In 1516 Las Casas was appointed Protector of the Indians and tried to influence the Jeronymite commissioners, but his zeal met determined resistance from the Spaniards who exploited the labor of the natives. When he told the Bishop of Burgos that seven thousand Cuban children had died of starvation in three months, because their parents had been taken to work in the mines, Fonseca asked how that concerned him or the king. The next year Las Casas proposed an experiment to settle Venezuela with farmers that would work all the natives in common under his rules. Twenty African slaves were to be put in the mines in place of the Indians, and only priests properly educated in his methods were allowed. The community was to be assisted by 74 officials with various technical skills, and 6,600 castellanos were to be spent on supplies per year. In 1518 a royal order authorized establishing the villages; but because of opposition Las Casas had trouble getting volunteers. Most of those rounded up by Captain Berrio fell ill, and the attempted colonization was delayed for three years.
The next year Bishop Juan de Quevedo, using Aristotle as his authority, argued that Indians are slaves by nature. The aristocratic Gonzalo Fernandez de Oviedo, the first official historian of the Indies, seemed to agree, but Las Casas kept this history from being printed. Las Casas suggested more Arthurian ideals, dubbed Knights of the Golden Spur. Opposed by Fonseca, Las Casas selected seventy laborers and went to Cumana in 1521; but some soldiers refused to serve under him and went off slave hunting. This caused the Guayqueri on the Venezuela coast to call on Caribs, and they burned the monastery, killed some Dominicans, and massacred the colony while Las Casas was away. Las Casas blamed himself for compromising with the slave-hunters. Drunken natives used poisoned arrows, and in revenge Spaniards enslaved 600 of them in two months. The frustrated Las Casas joined the Dominican order and retreated into a monastery on Española for many years. He became prior of a new monastery on the northern coast in 1526 and observed the dying slaves that were being brought from the Bahamas. He wrote reports to Spain and influenced legislation to suppress slavery.
In 1533 Las Casas persuaded a dying encomendero to free his slaves and leave his goods as reparation. As a result of this, pressure was put on his superior to confine him to the monastery. Las Casas accepted the submission of a "rebel" cacique named Enriquillo, who had been educated in a Franciscan convent. After the encomendero Valenzuela raped his wife, Enriquillo complained to Valenzuela and the governor's agent; but they only threatened him with punishment. He went to the Audiencia, which did no more than send him back with a letter. After more abuses and brutalities, Enriquillo withdrew to the mountains. He and other Indians defended themselves against the soldiers sent against them, taking their weapons. Enriquillo never let his men attack Spaniards first and ordered all prisoners disarmed and released. After thirteen years the colony had spent 80,000 castellanos trying to capture them. Finally Fray Remigio persuaded Enriquillo they could be friends with the Spaniards, and Enriquillo delivered to them gold but had to flee again from their treachery. Soon after Enriquillo agreed to accompany Las Casas to the town of Azua, he died.
Las Casas worked as a missionary in Central America and in 1536 refused to join an expedition under Captain Diego Machuca de Zuazo and denied absolution to those participating, because he believed the conquest ordered by Nicaragua governor Rodrigo de Contreras was wrong; but he offered to pacify the country himself with only fifty men. Contreras banished Las Casas; but King Charles ordered Contreras to suspend his expedition for two years so that Las Casas could use peaceful methods. He attended conferences in Mexico with his allies Fray Julian Garces and Bishop Juan de Zumarraga, urging the doctrine of peaceful conversion. Bernardino de Minaya took these ideas to a conference in Rome in 1536, and the next year Pope Paul III pronounced that American Indians should not be deprived of their liberty or property even if they are outside of the Christian fold; he threatened those who enslave Indians with excommunication. Las Casas wrote a long book, which is mostly lost, entitled The Only Method of Attracting All People to the True Faith. In this treatise he moderated his rhetoric and exhorted preachers to use only peaceful and loving methods of conversion, because any violence repels rather than attracts. Infidels are not moved by those greedy for wealth or desiring dominion over them.
Las Casas was allowed to attempt another experiment to test this thesis in Guatemala with his fellow Dominicans. The province of Tuzutlan was so untamed that it was called the "Land of War." In 1537 acting governor Alonso Maldonado from the second Mexico audiencia was investigating the Alvarado government and agreed to keep other Spaniards out of this region for five years. With three friars Las Casas wrote songs on Christian history, and they taught them to four native merchants who were Christians and began by trading with the natives and singing these songs. Then the Dominican Luis de Barbastro, who knew the Mayan language Quiché, went to live among them. The chief became a Christian and urged his people to follow. Las Casas took the chief to meet Governor Alvarado, and this experiment in peaceful conversion succeeded for several years as the region was renamed Vera Paz, the "Land of True Peace." Meanwhile colonists and ecclesiastics argued over peaceful preaching as a method.
Las Casas returned to Spain in 1539 and for two years lobbied the Council of the Indies to abolish encomiendas. He condemned this system in his Remedies for the Existing Evils, with Twenty Reasons Therefore. The ninth reason was the most simple and obvious, namely that all people in the new world are free. Even the Spanish Cortes (Council) in Valladolid petitioned the king to remedy the cruelties perpetrated against the Indians. After Charles V returned to Spain in 1542, Dominicans persuaded him to abolish encomiendas and promulgate the New Laws. No Indian was to be enslaved, and all existing Indian slaves were to be freed. Encomenderos without proper title were to lose their natives, as were all officials and prelates. No new encomienda was to be granted to anyone, and as encomenderos died, their natives were to revert to the Crown. On the islands of Puerto Rico, Cuba, and Española tribute was not to be demanded from Indians, who were to have the same rights as Spaniards. Suspected of taking bribes from Cortes, Pizarro, and others, the Council of the Indies was suspended for a year, and new commissioners were appointed. Later historians have questioned whether abolishing the encomiendas benefited the natives, because they still were considered tribute-paying vassals of the king.
The conquistadors reacted strongly to the New Laws, resulting in the assassination of the viceroy in Peru. Visitador Tello de Sandoval was sent to Mexico to enforce the New Laws; but he heard so many protests, he modified them. Business was badly affected, and hundreds of Spaniards returned to Spain with their wives. Clergy had also profited from encomiendas, and many priests resisted the reform. In 1545 the Council of Mexico advocated suspending the New Laws and making encomiendas perpetual, and Charles V did revoke the New Law on encomiendas later that year.
Las Casas met with hostility at Santo Domingo, but the stern rule of Judge Cerrato prevented violence. After rejecting the lucrative see of Cuzco, Las Casas was consecrated bishop of poor Chiapas in 1544. He met with bishops at Mexico City in 1546 and wrote Advice and Regulations to Confessors, urging the withholding of sacraments from anyone who did not compensate Indians properly for their labor. The rules were to be kept secret; but they leaked out and upset many. Penitents were required to give their slaves freedom instantaneously and irrevocably. They must pay for the wrongs they did, and very unpopular was the call for conquistadors, who had gained all their wealth from exploiting natives, to leave nothing to their sons. Merchants who imported war materials were also guilty and owed restitution. Those confessing must never again participate in a war of conquest against natives.
Having become too unpopular to minister effectively in the colonies, Las Casas resigned his bishopric and returned to Spain for good in 1547. The king's chaplain Juan Ginés de Sepulveda had written a treatise in which he argued that the wars against the Indians were just. Persuaded by Las Casas, university authorities refused to let Sepulveda's book be printed. Las Casas had been working on his History of the Indies for years and responded by writing the massive Defense of Indian Civilization. He argued that the current licenses should be revoked and that all conquest should be stopped. In April 1549 the royal order on "The Manner in which New Discoveries are to be Undertaken" was sent to the Audiencia of Peru.
Sepulveda wrote to Prince Philip in September, and in April 1550 Emperor Charles ordered all conquests stopped until theologians and counselors should decide the issue. Sepulveda wrote A Defense for the Book on the Just Causes of the War, which was printed at Rome in May 1550, and he wrote three other defenses in Spanish, describing the Indians as brutish and cowardly. Fourteen officials and ecclesiastics met for a month during the summer at Valladolid. Sepulveda spoke for three hours and then Las Casas read from his book for five days before the judges began their discussion. Domingo de Soto made a summary, and then Sepulveda wrote a reply to the twelve objections of Las Casas. Sepulveda argued that because of their idolatry and sins against nature, the Indians should be subjugated and protected by the superior Spaniards. He noted that the natives do not have any written laws or even private property. Las Casas responded that the Indians were quite rational and in some respects superior to the Greeks and Romans. He wrote,
No nation exists, no matter how rude, uncultivated,
barbarous, gross, or almost brutal its people may be,
which may not be persuaded and brought to a good order
and way of life and made domestic, mild, and tractable,
provided the method that is proper and natural to men is used;
that is, love and gentleness and kindness.1
The judges argued and made no judgment, but by 1566, the year Las Casas died, King Philip II was issuing licenses for new discoveries. Yet the more humane ordinance of 1573 was surely influenced by the life work of the zealous Dominican, as the concept of conquest was replaced by pacification.
After the debate, in 1552 Las Casas published eight tracts, including his Short Account of the Destruction of the Indies he had written ten years earlier. Unlike most of his writing, this bold criticism was translated in the 16th century into Flemish, English, French, German, and Latin and was thus widely disseminated. In the prolog he explained that it would have been a criminal neglect of his duty to remain silent about the enormous loss of life because of the conquests. He summarized the most egregious violations he was describing in his longer history. The native population of Española had been reduced from three million to two hundred. Cuba, Puerto Rico, Jamaica, and the Bahamas were similarly devastated. On the mainland Christians had caused the deaths of between twelve and fifteen million people by unjust war and brutal slavery in order to get gold and amass private fortunes. Las Casas repeatedly argued that the natives had done nothing wrong to deserve such ill treatment. They had welcomed the Europeans, believing they came from heaven until they realized what their oppressive purposes were. Only then did some of them take up their inferior weapons to try to defend themselves. Europeans were ruthless and vowed to slaughter one hundred natives for every Spaniard who was killed.
In Panama and Nicaragua Governor Pedrarias led the slaughter in the relentless search for gold. Demands for fifty slaves every few months were made of local leaders, who were burned alive or thrown to dogs if they did not meet their quota. Las Casas described the assaults in Mexico as worse than those of Turks trying to destroy Christians. He accused the Alvarado brothers of killing four million natives in Guatemala between 1524 and 1540. Other "butchers" he left unnamed were Guzman in northern Mexico and Montejo in Yucatan. In only the first ten years Las Casas calculated the number of deaths in Peru at four million. He noted that already the conquistadors in Peru were fighting and killing each other. He saw the Christ in each of the natives and lamented that they had not been given the knowledge of God. He loved Castile and feared his country would be punished for these crimes.
Las Casas wrote a treatise on imperial sovereignty in which he argued that the pope had no coercive authority to force infidels to accept Christianity, and he believed that the natives had their own rightful kings and property, which should be restored by the encomenderos who had robbed them. In Thirty Very Juridical Propositions he argued that everything the Spaniards had done in the new world was illegal and unjust. These writings and his sermons made Las Casas the most hated man in the Spanish empire. Several times the council of Mexico City urged Philip II to restrain the Indian advocate and prohibit the printing of his books. In 1554 licenciado Ribera on behalf of encomenderos in Peru offered Philip four million ducats if he would make encomiendas perpetual; so Las Casas contacted missionaries, and they promised even more money to the bankrupt Spanish government from the Indians themselves for their freedom. This royal commission was so fraught with corruption and fraud that the king dismissed it. In 1564 Las Casas wrote a Solution to the Twelve Doubts in which he asserted that it is right for even infidels to have jurisdiction over their own lives. He questioned the enrichment of the fortune hunters in Peru, and his writing stimulated Viceroy Toledo to research the history of the Incas so that he could prove that they had oppressed other natives.
In his last will and testament Las Casas described his call as:
To act here at home on behalf of all those people
out in what we call the Indies,
the true possessors of those kingdoms, those territories.
To act against the unimaginable, unspeakable violence
and evil and harm they have suffered from our people,
contrary to all reason, all justice,
so as to restore them to the original liberty
they were lawlessly deprived of,
and get them free of death by violence, death they still suffer.2
Then in the same will he left behind a disturbing prophecy:
I think that God shall have to pour out his fury and anger
on Spain for these damnable, rotten, infamous deeds
done so unjustly, so tyrannically, so barbarously
to those people, against those people.
For the whole of Spain has shared in the blood-soaked riches,
some a little, some a lot, but all shared in goods
that were ill-gotten, wickedly taken with violence and genocide-
and all must pay unless Spain does a mighty penance.3
The first major effort in this direction was made by a Dominican professor of theology at the University of Salamanca named Francisco de Vitoria (in Latin Franciscus de Victoria). Born about 1492 in the Spanish city of Vitoria, Francisco studied for seven years at the University of Paris. After teaching for three years at Valladolid, in 1526 he won the chair of theology at the University of Salamanca, where he lectured for the rest of his life. While his nation Spain was at the height of its power, he contributed much to moderating the violence of its conquests by raising concerns for international justice. After learning of the violence in the Spanish conquest of Peru in 1536, Vitoria lectured on the Indies for the rights of the natives. Charles V complained about the friar, but in 1542 new laws put the natives under the protection of the crown. Vitoria's lecture notes on the Indies and the laws of war were collected and published after he died in 1546. Because of his early discussions on the principles of international law and the laws of war, Vitoria is now generally recognized by scholars as the founder of modern international law.
Vitoria began with the premise that God has ordained certain principles for all by the law of nature, and these include not stealing, not killing an innocent person, and not doing to anyone what we would not let others do to us. The justice of natural law, which he considered necessary, he contrasted with the laws made by human will, which he called positive law. Vitoria observed that human societies are established to help bear each other's burdens. He noted that a community is needed for mutual assistance because a single family does not suffice, especially in regard to resisting violence. A perfect state is complete and whole and thus is not subject to any outside force. States, he believed, have the authority or right to use public power by governing in order to protect and preserve people. Vitoria believed that individuals would be torn apart if there were not a providential force, a state, to consider the common good and provide for the general welfare. A prince or good rulers should subordinate both peace and war to the common good of all, but a tyrant directs the government toward his individual good. Thus the government is not legitimate unless a majority agrees with the exercise of power.
Vitoria suggested that the law of nations derives from natural law and confers rights and obligations. The world as a whole has the power to create international laws that are just for all persons, and no country should be permitted to refuse to be bound by international law that has been so established. He believed that any war that is advantageous to one nation but is injurious to the world is unjust. Vitoria rejected Spain's imperial claims because all people are free by natural law. He argued that the Indians were in peaceable possession of their goods and must be treated as their rightful owners, and unbelief does not prevent anyone from being a true owner. Therefore Christians should not despoil their property. He declared that the Emperor is not the lord of the whole world. The pope has no authority over non-believers; thus war could not be waged against Indians because they did not acknowledge the pope's claims. Although the pope is not a temporal lord, he may judge between Christian princes in conflict.
Vitoria argued that Spaniards have the right to travel and live in other lands as long as they do not harm the natives, because friendship is part of natural law. Vitoria also held that running water and the sea are common to all by natural law, and so ships have the right to use them. Also it is the right of nations to trade as long as they do not hurt citizens. Spaniards do not have the right to prevent the French from trading. Christians have no right to take things from Jews or Muslims or unbelievers; but to do so is robbery, just as if they were taken from Christians. Vitoria argued that native princes may not hinder their subjects from trading with Spaniards, nor may Spanish princes prevent commerce with natives.
Vitoria believed that children of Spaniards ought to be allowed to become citizens, provided they submit to the legal burdens. Spanish missionaries have the right to preach the Gospel, and it is wrong to hinder them or to punish the converted. He advised that massacres and spoliation tended to hinder conversion. War should not be used to induce belief, for such belief is usually feigned and is a sacrilege. Vitoria did argue that Spanish sovereigns might send governors for those natives who would clearly be benefited by that; but it must be for their welfare and not for the profit of the Spaniards. They do have the right to stop human sacrifices and cannibalism in order to protect innocent people. The consent of all is not required, but a majority is sufficient. Yet the choice must be made without fear and ignorance.
Vitoria argued that defensive war may be used to repel force and that offensive war may even be employed to repossess property or avenge a wrong suffered. He reasoned that oppressors, robbers, and plunderers should not be allowed to commit their crimes with impunity without others having the right to retaliate. Thus rulers can punish enemies just as they can criminals in their own jurisdiction. So Vitoria granted every state the authority to declare and make war in order to defend the common good. He listed four justifiable purposes for war as self-defense and defense of property, recovering things taken, avenging a wrong, and to secure peace and security. Yet he explicitly stated that neither differences of religion nor extending an empire are just causes for war. Nor should war be conducted for the glory of a prince or for his advantage. Only a serious wrong is cause for war, for the degree of punishment should correspond to the measure of the offense. Anything doubtful makes it not a just war; otherwise there would be many wars with both sides claiming they are just.
A careful examination must be made of the justice of the causes, and the ruler's council and other governors should be consulted. Vitoria taught, "Subjects whose conscience is against the justice of a war may not engage in it."4 However, later Vitoria stated that subjects are bound to follow their ruler in a defensive war or an offensive war that is justified because they should not betray their state to the enemy. In the doubtful cases the benefit should go to the party already in possession. Those in doubt as to their claim should examine carefully and give a quiet hearing to arguments of the other side. Vitoria argued that a war cannot be just on both sides, and it is unlawful to fight against the just side. Vitoria also stated, "The deliberate slaughter of the innocent is never lawful in itself."5 He did acknowledge that collateral damage could occur in a just war, and some innocent people may be killed, as when a city is stormed, for example.
Vitoria argued against the killing of guilty people because of the expectation they may cause danger in the future. Arms, ships, and engines of war may be taken from the innocent to prevent the enemy from using them, but agriculture should not be despoiled. Foreigners and guests of the enemy should not be killed unless they are obviously at fault. Hostages should not be killed. Vitoria allowed reparations from the enemy for damages wrongfully caused, but they must be in proportion to the wrong. Vengeance for wrongs should be conducted with due regard for equity and humanity. Only in rare cases is it justified to overthrow the enemy's sovereignty and depose the ruler. Finally, in victory Vitoria recommended moderation and Christian humility.
Although some of Vitoria's points are debatable, he clearly
set up many useful standards for limiting and regulating the massive
violence that was occurring in his time. He helped to bring some
reforms to the ruthless Spanish policies of the conquistadors;
but he also justified their interventions more than the humanitarian
efforts and writings of Bartolomé de Las
Two years after Vitoria died, Francisco Suarez (1548-1617) was born in Granada. He studied canon law at Salamanca University for nearly ten years. After failing two tests for the recently founded Society of Jesus, he was admitted into the Jesuit order in 1564. Seven years later he began teaching philosophy at Segovia, and starting in 1580 he taught at Rome for five years; by then he was so renowned that Pope Gregory XIII attended his first lecture. After teaching seven years at Alcala and five years at Salamanca, in 1597 King Philip II persuaded Suarez to teach at Coimbra in Portugal to give that university more prestige, and he taught there until 1616. He died after trying to mediate a dispute in Lisbon between ecclesiastical and lay authorities.
The extensive writings of Suarez are perhaps the culmination of scholastic theology. His book on laws, De Legibus, was completed in 1612. The next year at the request of Pope Paul V he wrote a response to the claims of Anglican theologians and England's king James I to the divine right of kings without being under the authority of the pope. In his Defense of the Faith (Defensio Fidei) Suarez argued against the oath of allegiance James had imposed in which his subjects abjured the doctrine that princes excommunicated by the pope may be deposed or murdered by their subjects. Suarez believed that princes ruled by consent of the people and could be deposed if they became tyrannical. His book was publicly burned in London and in France, where refugee Grotius in writing his books was careful about praising the Spanish theologian. Suarez called conflict within a state sedition and held that the aggressor is evil, but defense is just. Once again, the people have the right to overthrow an unjust ruler. Suarez called private wars duels and considered them intrinsically evil.
Suarez believed that theology was the highest study involving the human conscience and should be the basis for law. He often agreed with the ideas of Vitoria but attempted to refine his ideas more precisely. All people are born free by natural law, and nature does not confer on any particular person political jurisdiction over another. Rather the power of the state resides in the whole body of mankind. However, unlike Vitoria, Suarez did not believe that a single state for all humanity was feasible. Thus the power of making laws resides in several political communities. The legitimacy of a ruler can be lost if the consent of the community is forfeited. The form of government depends on human choice because it is too difficult for the whole community to make laws directly. If a legitimate ruler lapses into tyranny, the people may wage a just war against him by the right of self-defense. If a tyrannical usurper is clearly unjust, and if no other remedy is available, it is licit for even a private individual to kill him. Suarez held that unjust tax laws do not bind the conscience.
In discussing the theological virtue of faith, Suarez argued that the Church has the right to preach the Gospel everywhere and to defend its preachers against force and violence that hinders them. For this purpose the pope may distribute realms of the unbelievers, though peaceful means of persuasion must first be employed.
Suarez discussed the issue of war in respect to the theological virtue of charity. He took the position that war is not evil in itself, and he argued it is not forbidden to Christians because defensive war and even offensive war that is right are permitted. He cited the three traditional conditions that are needed to justify war, namely legitimate power, a just cause, and just, proper, and proportionate conduct of the war. Generally an inferior prince or imperfect state may not declare war without authorization of the superior, though Vitoria and he made an exception if the sovereign prince is negligent in avenging a wrong. Jurisdiction depends on there being a tribunal which is supreme in that realm. Suarez argued that although the pope has no direct temporal authority, he may authorize a prince to conduct a just war; a war declared against that legitimate authority, Suarez considered contrary to charity and justice.
Injuries must be serious to cause a war, which is only justified if they refuse to give satisfaction for the injury. A defensive war should be tried before being offensive. An injured sovereign should not enter into an offensive war of revenge if the chance of victory is unlikely. Suarez gave two reasons for declaring a war, either because of an injury or to defend the innocent. Like Vitoria, Suarez also recommended getting advice from good men, who should inquire diligently into the truth. Common soldiers are not required to make such an investigation, though Sylvester and Adrian held that they must do so if they have reasons for doubting the justice of the war. Suarez also justified incidental injuries to innocents in conducting the war, and innocents he defined as children, women, those unable to bear arms, ambassadors, and Christian clergy, but he considered all others in the enemy state guilty. Vitoria and Suarez went so far as to allow capital punishment of the guilty individuals after victory.
Eméric Crucé (1590-1648) was a monk who taught at a collège in Paris. He was a classical scholar little known except for his treatise on universal peace entitled The New Cyneas, which was published in 1623 with a second edition in 1624. This work is the first practical proposal for world peace which does not aggrandize the power of a particular nation, empire, or religion. Crucé declared in the preface, "No one can say that he has strayed from the path of truth out of love either for his country or his religion, even though these loves are so engraved on his soul that death itself cannot efface them."6 He wrote during the early years of the Thirty Years' War, and his ideas probably influenced the Peace of Westphalia in 1648. His concept of a universal and perpetual peace was adopted by the Duke of Sully in his description of Henri IV's "Grand Design" (for this idea did not appear in the 1620 edition of Sully's work but was fully treated in the 1638 edition), and Hugo Grotius may have known of it when he was in Paris writing The Law of War and Peace.
In an age of religious intolerance and fanatical wars over conflicts in theology and church ritual, Crucé put forward a tolerant and universal vision of peace and justice. He stated in the preface, "I know that heresies must be refuted, but I see none greater than the error made by those who place injustice above all else and who value only arms."7 When the house of a neighbor is burning or falling down, there is reason to feel fear and compassion. Because human society is one body in which all the members are in sympathy, it is impossible for the sickness of any one part not to be communicated to the others.
Not only was Crucé the first to suggest a political solution, whose primary aim was world peace, but also he was the first to consider the economic implications and goals as is indicated by his subtitle: "Discourse on Opportunities and Means for Establishing a General Peace and Freedom of Trade Throughout the World." He addressed himself to the current monarchs and sovereign rulers, and clearly his method was to reason with them and institute his program from the top down. He named his book after the ancient Cyneas, who had advised Pyrrhus of Epirus (319-272 BC) to make peace instead of war; the rival of Macedonia and Rome ignored his advice and won "Pyrrhic victories," but their heavy losses made them as bad as defeats. Crucé claimed that he would show rulers ways to make their states secure through establishing universal peace, which is in the public interest, and he begged them to have pity on the human race and stop the abuses of horrible wars. He suggested offering clemency and even farmland for privateers who gave up piracy because it is cheaper than suppressing them by force, which he nonetheless advised for those who refused to cooperate.
Crucé pointed out four main causes of war: honor, profit, righting some wrong, and exercise; religion, he felt, usually only served as a pretext. Crucé criticized the common opinion that the exercise of arms is noble and glorious. Ordinary valor is brute force, but magnanimity and steadfast courage make for true valor, which is to reject all wrongs and not do any. Actually there is more dishonor than honor to be found in war-insults and scorn to prisoners and ignominious death. Princes ought to be ashamed of warmongering and curtail their ambition. As for profit, more often than not the costs of war are tremendously expensive, even for the winning side. The avenging of past wrongs is precarious, because sovereigns rule by the grace of God. Too often their attempts to fight for what they think they have a right to does not meet with God's providence, and many kingdoms have been lost by rulers, who tried to exterminate some other power they believed to be unjust. Long possession indicates God's favor, and therefore conquest is not just. Instead of resorting to arms to settle disputes, they ought to submit their cases to arbitration by sovereign rulers not involved in the particular case.
The danger of war from restless activity requires several remedies. The sovereigns must maintain control of their armies and not let the militarists take over. Princes ought to be proud of maintaining peace and justice rather than trying to aggrandize themselves through conquest. Games and hunting can exercise and release the tensions of the more aggressive. With universal peace agreed upon, the army can be reduced greatly, while at the same time bona fide police and peace officers can be paid larger wages. Manpower can be put to work in agriculture, trade, and in building needed canals. Pirates and enemies can be given opportunities to work through public assistance programs. Artists and craftsmen can be encouraged by offering rewards for excellent work.
Crucé believed that religious conflicts could be overcome by realizing the basic similarity of human nature, which is the true foundation of friendship and society. Ultimately all religions have the same goal of adoring God, which is found in the heart. True piety does not lead to animosity, malice, hostility, nor slander. We must be good and have charity, which makes faith possible. Whoever lacks charity does not have religion in their heart. Crucé warned against the arrogance of trying to correct others' beliefs by force. Wrong actions may be punished by civil laws, but only God, who sees people's hearts and their secret thoughts, can judge questions of understanding. The Emperor Charles V had attempted to suppress Lutheranism in its beginnings, but he was forced by his new enemy to grant them freedom of conscience in order to preserve his own state.
Crucé proposed that there be an assembly of ambassadors from every nation in the world including Tartary, Persia, China, Ethiopia, and the East and West Indies. He suggested Venice as the meeting place, because it was neutral, central, and accessible. Decisions were to be made by the whole assembly, which could easily bring violators "back to the path of reason." Laws would be passed by the majority of votes and would be enforced with arms. Princes must remain within their established boundaries and must not go beyond them for any reason. Complaints could be presented to the general assembly, which would decide them. Crucé declared that the peace would be extremely valuable to all the monarchs.
Then Crucé turned to the means necessary to maintain the domestic peace within each country. The monarch must govern moderately according to reason and with care for all the people. Vice and crimes must be justly punished, and the ruler must be especially careful to root out flatterers and financial schemers from his own court. Rewards of honor and profit may be used to encourage good works. They must provide for the poor; if they are healthy, they may be taught trades. Crucé is quite critical of lawyers and legal tricks and formalities, which delay justice and make it expensive. He recommended judges of integrity and simplification of legal suits and processes. Taxes, which are necessary to the state, ought to be based on land and the ability to pay, and trade ought to be universal without restrictions between nations. Public grain ought to be stored up in case of famine. Crucé encouraged lawful recreation such as athletics, theater, and music. The power of censure ought to be used to regulate morals, and the influence of public opinion can keep people upright. Those who lead dissolute lives may lose their privileges-a senator his position, a knight his title, a citizen his civic rights. Crucé recommended education for the young, which includes reading, writing, arithmetic, history and laws, languages, and exercise.
Between states the borders are to be kept the same; trade may be arranged; and foreigners must be treated justly. Weights, measures, and money must be standardized to prevent cheating. Crucé concluded with a description of the horrors of war that are caused by the sins of arrogance and cruelty. With little provocation thousands of men clash with each other, resulting in slaughter, dismemberment, and misery. Then innocent people are massacred, women violated, and temples profaned; famine and pestilence follow. Cruce exhorted us to renounce arrogance and cruelty so that wars will cease.
Huig de Groot, known by the Latin form Hugo Grotius, was born in Delft, Holland on April 10, 1583 during the era in which the Netherlands was attempting to free itself from political and religious domination by Spain. His mother was Catholic, and his father was a Protestant burgomaster and curator of the University of Leyden. By the age of eight Hugo was writing Latin poetry, and by the time he was twelve he had converted his mother and entered the university, studying under the great scholar, Joseph Scaliger. At fifteen he left the university, and serving the statesman Johan van Oldenbarnevelt, he traveled on a diplomatic mission to France, where Henri IV called him the "Miracle of Holland." He was admitted to the bar and in 1600 settled at The Hague to practice law with Oldenbarnevelt and the Dutch East India merchants. In 1604 Grotius was asked to defend the United East India Company after one of its ships captured a richly laden Portuguese ship in the Straits of Melaka, where the Portuguese were trying to exclude the Dutch. After the Prize Commission decided in favor of the Company, a leading Anabaptist, opposed to violence, sold his stock.
Grotius developed his ideas on international law by writing a long Commentary on the Law of Prize; the complete manuscript was not discovered and published until 1868, though he anonymously published its twelfth chapter in 1609 as Mare Liberum (Freedom of the Seas). In this book he challenged the claims of England, Spain, and Portugal to rule over portions of the ocean, arguing that the liberty of the sea is essential to the right of nations to communicate with each other and that no nation can monopolize ocean highways because of the immensity of the sea and its lack of stability and fixed limits.
Grotius married in 1608 after he became official historian of the United Provinces and advocate-general of the Fisc of Holland and Zeeland. The next year the Dutch made a twelve-year truce with Spain, and in 1610 Grotius justified their revolt against Spain's Philip II in his history of Holland entitled The Antiquity of the Batavian Republic. In that work he also presented skillful arguments for a Dutch monopoly on East Indian trade even though this advocacy directly contradicted the principles he formulated in his Mare Liberum. In 1613 he was appointed to the high legal office of pensionary of Rotterdam, becoming its chief magistrate and representative in the States General of the United Netherlands. Grotius went to England on a diplomatic mission concerning the freedom of the sea. Speaking for a group from his country, Grotius urged King James I to convene an international council to work on reuniting the divided Christian churches.
In Holland again, Grotius became involved in the Arminian controversy under the leadership of Oldenbarneveldt in a political struggle against more conservative Calvinists. He took the side of free will against the theory of predestination. Grotius wrote a passionate appeal in support of the Edict of Pacification, which recommended tolerance. However, the political leader Maurice allied himself with the Church and fanatical peasants against the Edict of Pacification. Representing the States of Holland, Grotius publicly addressed the authorities of Amsterdam in favor of tolerating the two theological opinions; considering the political danger to the country and the religious danger to Protestantism, he pleaded for toleration and peace. But these were intolerant times, and his address was treated with contempt and suppressed by force. Though his family and friends advised him to give up the struggle, he devised a new formula for peace to be signed by both parties that did not contradict Calvinism and proposed a council to settle the question peacefully. This also was rejected by the fanatics and Maurice.
In 1618 the orthodox Calvinists took control of the government, and Oldenbarnevelt and Grotius were arrested for treason against the state. The next year Oldenbarnevelt was executed, and Grotius was sentenced to life imprisonment. His wife was allowed to live with him in the fortress castle of Loevestein and to provide him with writing materials and books. While imprisoned, Grotius began writing an Introduction to Dutch Jurisprudence, which was published in 1631 and became a standard textbook in Holland and the law code for South Africa from 1859 to 1901. In 1621 his wife concealed him in a chest for books, and he escaped to Paris, where she later joined him. He then wrote a letter to the Netherlands authorities, declaring that no one had been bribed to aid his escape, that he did not consider himself guilty of any crime against his country, and that nothing had happened to cause him to love his country any less.
Barely surviving on a small and irregular pension from Louis XIII, Grotius began in 1623 his great work, De Jure Belli ac Pacis (The Law of War and Peace), which was published in 1625. The Catholic Church proscribed the work in the index in 1627. The influence of the work spread though, as the Thirty Years' War was in midstream. Grotius and his wife returned to Holland in 1631; but another decree by the States General offered a reward for his arrest, causing them to leave Amsterdam and go to Hamburg. A poem he had written in prison, he translated into Latin in 1627 as The Truth of Christianity. It was enormously popular among Catholics and various Protestant sects because it focused on the essential teachings of Christianity rather than the sectarian questions, which divided Christians. This Latin book was translated into French five times, into German three times, and into English, Swedish, Danish, Flemish, Greek, Chinese, Malay, Persian, Arabic, and Urdu.
The monarch of Sweden, Gustavus Adolphus, kept a copy of The Law of War and Peace next to his Bible under his soldier's pillow during the campaigns of the war. He commended Grotius before his death on the battlefield in 1632, and Grotius was selected as an ambassador of Sweden to help Chancellor Oxenstierna negotiate a new alliance with France. Preoccupied with writing religious dramas and poetry, Grotius was put off by Cardinal Richelieu's arrogance, and they quarreled over precedence and court etiquette. Grotius tried but failed to negotiate a treaty to end the Thirty Years' War. In 1641 he wrote his brother that Richelieu hated him solely because he loved peace; he suggested that if Christian princes would choose fair arbitrators, there would be no more war among them. In 1644 he was recalled to Stockholm by Queen Christina, who liked to patronize scholars and philosophers. However, Grotius decided to go home; his ship was caught in a storm, and he fell ill and died at Rostock on August 28, 1645.
Although he believed that there could be a "just war" (unlike Erasmus and other pacifists), Grotius made a tremendous contribution toward international law and to more just and moral conduct during wars. Living during an age of cruel and lawless religious and national warfare, The Law of War and Peace delineated codes of justice for protecting innocent non-combatants, discerning rights of persons and property, and arranging methods for truces, treaties, and humane treatment of hostages and prisoners. In the Prolegomena, Grotius suggested that there is a common law among nations that is valid for war. Then he asserted the need for these principles.
Throughout the Christian world I observed
a lack of restraint in relation to war,
such as even a barbarous race should be ashamed of;
I observed that men rush to arms for slight causes,
or no cause at all,
and that when arms have once been taken up
there is no longer any respect for law, divine or human;
it is as if, in accordance with a general decree,
frenzy had openly been let loose
for the committing of all crimes.8
Grotius began by noting that "controversies among those who are not held together by the common bond of municipal law"9 are questions of war and peace. These occur when people either have not yet formed a nation or belong to different nations. The law of nations that is beyond the municipal law, as Dio Chrysostom noted, evolves over time and is customary. Grotius quoted numerous classical and biblical sources but derived his principles using human reason from natural law and the law of nations, which are universally accepted. A civil right derives from the laws of a sovereign state; but he asserted that the law of nations is a more extensive right because it derives its authority from the consent of all, or at least of many, nations. Grotius believed that if authorities issue an order that is contrary to natural law, it should not be carried out.
Grotius distinguished public wars from private wars but noted that some wars are a combination of the two; he held that any of them could be justified in some circumstances. However, in any war no more than one side can be in the right, and in some wars neither side is justified. He delineated three justifiable causes for war. The first is self-defense; the second is defense of property; and third, serious offenses may justify punishment through war. Every effort should be made for a peaceful settlement, including arbitration. Especially in doubtful cases, we must listen to our conscience, which can guide human actions in accordance with justice and reason. He quoted Cicero to show that the failure to use human reason reduces humans to the violence of brutes. Wars over religion cannot be justified, because religion is a question of conscience and inner conviction which cannot be forced on anyone. Therefore wars against infidel nations or heretics are unjust, and no law can make a belief or disbelief a crime.
Grotius acknowledged the historian Polybius as the first to distinguish justifiable causes for war from persuasive arguments that he considered mere pretexts. Thus those who go to war without a justifiable cause, such as Alexander did against the Persians, are actually robbers. When causes are doubtful, war should be obviated by a conference in which the adversaries may negotiate a settlement or secondly by arbitration through a compromise or thirdly by lot or single combat. When the doubts on either side are equal, the one with possession has the greater claim. He advised that it is often better to relinquish a right than to try to enforce it. In arbitration he emphasized that it is important to choose a just judge who has integrity.
In the third book Grotius discussed the general rules derived from natural law as to what is permissible in the conduct of war. He allowed the means to the end and for other justifiable causes that may develop during the war. He found deceit allowable in some circumstances of war, but falsehood is not justifiable in making promises or in oaths. He required a formal declaration for a public war, and it may be conditional. Grotius considered it a violation to poison weapons or waters. By the law of nations he considered those captured in war to be slaves, though he noted that Christians and Muslims do not treat them as slaves but may sell them for ransom or make the captives work. Grotius advised moderation in killing and destroying during a just war. Finally he discussed the making of truces and peace treaties to end war, and he noted the rights of those not involved in the war. He urged that peace be kept and concluded his work with a prayer to God.
Samuel Pufendorf was born on January 8, 1632 in Saxony in the family of a poor Lutheran pastor; but a rich nobleman helped him get a good education, and Pufendorf studied theology at Leipzig University. In 1656 he went to Jena, and he was influenced by the writings of Grotius, Hobbes, and Descartes. While he was tutoring the family of the Swedish ambassador in Denmark, war broke out between the two countries, resulting in his being imprisoned with them for six months. Having developed his own philosophy, in 1660 Pufendorf published Two Books on the Elements of Universal Jurisprudence. This gained attention and earned him a position at Heidelberg University, making him the first professor of international law. In 1667 he published under a pseudonym an attack on the constitution of the Holy Roman Empire. After being banned, this book was widely translated and spread abroad. The next year Pufendorf left Heidelberg, and he then taught for twenty years at the new University of Lund in Sweden. In 1672 he published his major work, Eight Books on the Law of Nature and of Nations. As the royal historiographer in Stockholm, Pufendorf wrote a 33-volume history of Sweden. He went to Berlin in 1688 and wrote a 19-volume history on the life and reign of the elector of Brandenburg before he died in 1694.
Pufendorf based his legal theories of natural law on the social nature of human experience, and he believed in human freedom and equality. Although humans are naturally sociable, their unsocial behaviors need to be regulated by law. Humans often go beyond the nature of other animals in their greed, lusts, vanity, and competitiveness. From natural law reason indicates that humans have duties to God, to oneself, and to others. For mutual advantage and to gain protection from others, humans organize themselves in communities. Pufendorf believed that civil government is more effective in restraining abusive behavior than either God or conscience. He defined the three causes of a just war and differentiated defensive and offensive wars as follows:
The causes of just war may be reduced to these three heads.
First, to defend ourselves and properties
against others that design to do us harm,
either by assaulting our persons,
or taking away or ruining our estates.
Secondly, to assert our rights when others,
who are justly obliged, refuse to pay them to us.
And lastly, to recover satisfaction
for damages we have injuriously sustained,
and to force the person that did the injury,
to give caution for his good behavior for the future.
And hence arises the division of just wars
into offensive and defensive.
The latter of which I take to be those sorts of wars,
in which men endeavor to defend and keep what is their own.
The former are, when men extort their rights
that are denied by force,
attempt to recover what has been unjustly taken from them,
and require caution for the future.10
In international law Pufendorf was concerned that nations had
begun to believe they had a right to go to war without considering
the ethical issues; so he argued that following natural law by
means of reason is preferable to the precedences of past customs
Christian Wolff was born on January 24, 1679 in Breslau, and his father vowed to dedicate his son's life to study. Christian studied mathematics at the University of Jena and received a master's degree at Leipzig. With a recommendation from the renowned philosopher and mathematician Leibniz, Wolff began teaching at Halle in 1707. He became interested in philosophy and theology, and his lectures on those subjects were popular but aroused jealousy from Halle theology professors. Wolff aimed to apply the methods of science to theology. In 1711 he was elected into the Royal Society in London, and he became a member of the Berlin Society of Science and the Academy of Science in Paris. Wolff was a champion of academic freedom and the unhampered search for truth; but Pietist theologians objected to his new philosophy examining the highest questions, and they tried to confine him to teaching mathematics.
When Wolff became Pro-Rector in 1721, he gave a lecture that emphasized the importance of Confucius and his idea that one may attain happiness without revelation. Two years later military officers persuaded King Friedrich Wilhelm I to dismiss Wolff for teaching doctrines opposed to religion. Those reading Wolff's writings might be punished with servitude. Wolff went to Marburg and got an increase in salary too. He began writing in Latin instead of German so that he could influence all of Europe. In 1736 a society of the friends of truth struck medals stamped with the heads of Leibniz and Wolff and followed Wolff's dictum that they should not hold anything as true or false unless they are convinced by sufficient reason. When Friedrich II became king in 1740, he invited Wolff back to Halle as professor of law and vice-chancellor of the university. Three years later Wolff was made chancellor, and in 1745 he was proclaimed a baron of the empire. He died of arthritis in 1754.
Wolff is recognized for systematizing philosophy with scientific logic. After writing extensively on mathematics, logic, ontology, cosmology, physics, psychology, and theology, he turned to ethics and natural law. His work on natural law (Jus Naturae Methodo Scientifica Pertractatum) in eight volumes was written between 1740 and 1748. A ninth volume on international law was completed in 1749 and was given the long title: The Law of Nations Treated According to a Scientific Method: In which the Natural Law of Nations is carefully distinguished from that which is voluntary, stipulative, and customary. This was followed in 1750 by Wolff's Institutiones Juris Naturae et Gentium.
In The Law of Nations Wolff defined his terms and explained his general principles in the Prolegomena. He followed Grotius in defining the necessary law of nations as what binds nations in conscience, and as part of natural law he considered it immutable. Humans are naturally social and are bound to preserve society for the common good. All the nations together make up the supreme state, which should have its own right to promulgate laws for the good of all. Individual states are bound to the whole because they wish to promote the common good; they have the right to coerce individual nations that are unwilling or negligent in performing their obligations. Wolff wrote that all nations are equal because they are like free persons, who are also equal before the law. Thus all nations have the same rights and obligations. Since the supreme state is made up of many individual nations, its government is naturally democratic; its sovereignty rests with humanity as a whole. What seems best to the majority must be considered the will of all humanity. Since they are not all able to meet, leadership may be provided naturally by right reason.
Following Grotius, Wolff defined the voluntary law of nations as equivalent to civil law. Agreements between nations create what is called stipulative law, which is not universal but particular. The customary law of nations is also particular and is based on the tacit consent of nations. These three kinds of law-voluntary, stipulative, and customary-deriving from the will of nations, Wolff called the positive law of nations, and he distinguished it from the natural or necessary law of nations that is immutable.
Next Wolff described in detail the duties and rights of nations to themselves and to each other. Contrary to Vitoria and Suarez, Wolff argued that the ruler of a territory can prohibit missionaries from entering. Wolff also analyzed treaties and other agreements of nations as to their obligations in various circumstances. In his chapter on the methods of settling controversies of nations Wolff acknowledged that retaliation may be customary; but he argued that it is unjust by natural law, and therefore the right of retaliation is unjust customary law. When a nation suffers an irreparable injury, it should try to find out if an agreement can be made concerning payment. Wolff differentiated reasons that justify a war from "persuasive reasons" derived from utility or advantage, both of which he considered made the war unjust. In the conduct of war Wolff held that it is not allowable to kill or enslave those captured unless they have committed specific crimes liable to punishment. He recognized the right of nations to contract treaties of neutrality.
In the chapter on peace and treaties Wolff emphasized that
it is the obligation of rulers "to strive in every way to
preserve peace" for the sake of their subjects. If nations
fear a disturber of the public peace, they should make treaties
of war at the proper time and may ally themselves with the one
who is being harassed by the disturber's attacks. He also discussed
how peace treaties could be made to end war.
Emerich de Vattel was born on April 25, 1714 at Couvet in Neuchatel, Switzerland. His father was a clergyman of the Reformed Church but died in 1730. Then Emer excelled at the University of Bale until he went to Geneva in 1733. He liked literature and philosophy, and in 1741 Vattel published a Defense of the Leibnizean System. He went to Dresden, and in 1747 he received a pension in Saxony. In 1758 during the Seven Years' War he published his Law of Nations and was appointed a privy councilor by King Augustus III of Saxony. His last work in 1762 was on the natural law philosophy of Wolff. Vattel's health declined, and he died of edema in 1767.
Vattel was much influenced by Leibniz and Wolff, and he wanted to bring the benefits of philosophy to politics. Believing that the Latin of Wolff's 1749 Law of Nations was obscure, he began translating it into French but added his own ideas. The work became his influential Le Droit des Gens, the complete title being translated as The Law of Nations or the Principles of International Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns. In his preface Vattel reviewed concepts of the law of nations from the Roman law of Justinian and the definitions of Grotius. In order to increase human happiness Vattel aimed to promote political liberty, mutual aid among nations, and the diminution and mitigation of wars. He wrote,
The end or aim of civil society is to procure for its citizens
the necessities, the comforts, and the pleasures of life,
and in general their happiness;
to secure to each the peaceful enjoyment of his property
and a sure means of obtaining justice;
and finally to defend the whole body against all external violence.11
Vattel argued that a state is not and cannot be the patrimony of a despotic prince, because the sovereignty of the people is inalienable. A nation has the right to change its constitution, and those who dissent are free to leave the country. A nation is a political body or society of people, "who have united together and combined their forces in order to procure their mutual welfare and security."12 Like Wolff, Vattel asserted the equality and sovereign independence of states. Just as individuals aim to perfect themselves, nations are obligated to mutual assistance in perfecting themselves.
For Vattel self-preservation is the most basic obligation, but helping to promote and protect the welfare of others comes next. The first book of his Law of Nations delineates the obligations a nation has to itself, and the second book discusses its rights and duties in relation to other nations. He wrote that these latter duties include assisting a nation against a powerful enemy that threatens to oppress it, giving aid during a famine, imparting laws, not monopolizing trade, not taking possession of vacant lands, engaging in commerce, instituting consuls for trade, rendering justice regardless of nationality, giving aid when requested to carry out justice in its jurisdiction, opening one's borders to foreigners provided they observe the laws of the country, not restraining them if they wish to leave, not preventing the right of inheritance, and even in civil war aiding those with justice on their side or protecting people from unjust tyranny. Thus Vattel argued that each state owes to other states what it owes itself.
Respecting the liberty of nations, Vattel argued against attempting to benefit natives against their will, and he specifically condemned the Europeans for attacking the American nations and subjecting them to their avaricious rule in order to "civilize" them, a pretext he considered both unjust and ridiculous. A nation must request duties of humanity before receiving them. Vattel defined the rights of necessity and primitive community, and he distinguished perfect rights from imperfect rights. Necessity may make some actions right that would otherwise be unlawful, when not doing so would mean one would not be fulfilling an indispensable obligation. He gave the example that a nation in desperate need of food can force a neighbor with an over-supply to furnish food at a fair price. Primitive community of ownership is the duty to give assistance that causes no harm or inconvenience, such as allowing the use of coastal waters, rivers, or roads for commerce. Perfect rights compel the fulfillment of corresponding obligations and can be enforced. Imperfect rights request an optional obligation, which may be declined. If a perfect right is refused, it is an injury; but an imperfect right is doubtful. However, a doubtful or imperfect right may be made obligatory or perfect by means of a treaty.
Vattel followed Wolff in separating the natural law of ethical conscience, which he called internal, from the positive or external law, which he classified as voluntary, conventional, and customary. Voluntary law comes from presumed consent, conventional law from expressed consent, and customary law from tacit consent. For Vattel just as the conventional law of a treaty may transform a doubtful obligation into a perfect right so too customary law may remove doubt so that a sovereign need not submit his case to arbitration.
Vattel defined war as prosecuting our rights by force. He believed that if men were reasonable, they would settle their quarrels by appealing to justice and equity for deciding judgment; but using force is a sad expedient that is used against those who despise justice and will not listen to reason. A wise nation will only use it as a last resort after all other methods have failed. He noted that humanity revolts against a ruler who goes to war without necessity, for an unjust war leads to innumerable crimes and disasters. Such a ruler is responsible before God and answerable to humanity. For war to be endured, a nation must want it, and the cause must be just. Nations that use arms for gain are unjust plunderers and enemies of humanity. Other nations then are justified in uniting together to punish the offending nation.
So for Vattel a war is only justified if a right needs to be protected, and if there is no other method than by force of arms to secure that right. In a doubtful case he recommended that the dispute be settled by compromise. If one side refuses a fair compromise, the other side may be justified in enforcing it. However, he considered it pernicious and absurd to think that war should be used to decide controversies, because victory usually goes to the stronger and more skillful, not to those with justice on their side. He also believed that both sides in a war cannot be just. Although Vattel did not believe in the supreme state of Wolff and Vitoria, he did recommend that confederations can maintain a balance of power and may preserve the liberties of nations. Vattel emphasized the independence of nations, but he has been criticized for failing to provide effective ways to keep the peace and assure justice. He did suggest that nations could join together to put down a violator of international law.
Vattel argued that a declaration of war is necessary as the last attempt to settle the dispute without bloodshed. The arguments for the war being just should be presented. A conditional declaration threatens war if specific obligations are not met. Vattel reminded people at war not to forget the humanity of their enemies and never to abandon the charity that binds the human race. During war the nation must always consider the legality of the means employed. The Swiss Confederation had been following the maxim of neutrality for two centuries, and Vattel contributed to clarifying these rights and legal principles. Vattel was the first to suggest that neutrality does not mean equality of assistance to both sides but rather giving no help to either side.
1. Apologetica Historia by Bartolomé de Las Casas
p. 127-129 quoted in The Spanish Struggle for Justice in the
Conquest of America by Lewis Hanke, p. 126.
2. Indian Freedom: The Cause of Bartolomé de Las Casas ed. Francis Patrick Sullivan, p. 354.
3. Ibid., p. 354.
4. De jure belli, 23 by Francisco de Vitoria, tr. José Maria Gimeno.
5. Ibid., 35.
6. The New Cineas Preface by Emeric Crucé, tr. C. Frederick Farrell, Jr. and Edith R. Farrell.
8. On the Law of War and Peace Prolegomena 28 by Hugo Grotius, tr. Francis W. Kelsey, p. 20.
9. Ibid., Book 1, Chapter 1, §1, p. 33.
10. The Law of Nature and of Nations Book 8, Chapter 6, §3 by Samuel Pufendorf, tr. Basil Kennett, p. 834.
11. The Law of Nations, Book 1, Chapter 2, § 15 by Emerich de Vattel, tr. Charles G. Fenwick, p. 13.
12. Ibid., Introduction, § 1, p. 3.
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