From this time the nation was divided into two parties: the bishops and clergy applying themselves to the ftudy of the civil law; the nobility and laity, with equal pertinacity, adhering to the common law. The ecclefiaftics taught the former in the fchools and univerfities: and colleges, or inns of court, were founded for the study of the latter.

Wherever party prevails, each entertains an implacable averfion against the modes and practice of the other. Thus the laymen, who were the stronger party, profeffed the utmost contempt for the civil law, and upon all occafions gloried in their ignorance of it. Add to this, that the reformation having weakened the power of the ecclefiaftics, the progress of the civil law received further diminution; even the small remains of it, ftill preserved in the practice of the commons, is fo little understood or regarded, that their very forms of proceeding are every where, except in their own courts, unintelligible jargon; and this flight veftige of ecclefiaftical jurifdiction, is generally ridiculed as the remnant of bigotry.

Under these difcouragements, it cannot be matter of furprize, that every branch of the civil law has lain in a rude and uncultivated ftate, and that the knowledge of it has been hitherto almoft wholly confined to the immediate profeffors. But we may hope, as a more liberal turn of thinking feems to prevail, that thefe unreasonable prejudices will be removed; and we confider the treatise before us as a favourable omen for that purpose.

The ingenious writer has, in a concife manner, introduced that general fyftem of public law, which before was only to be collected from references to foreign authors. In the divifion of his matter, he has followed the ufual diftribution, which former writers on thefe fubjects have generally obferved. But he appears to have chiefly formed his plan after the model of Grotius, whom he has, in fome inftances, copied rather too closely *. The authorities he occafionally cites are, however, of the highest repute; and his method of analyzing their arguments is ingenious. We may add to this that his ftile is eafy and clear; and his reafoning generally perfpicuous.

Though the writer generally refers to the authors whofe fenti ments he copies, yet he fometimes makes free with their materials without any fuch reference. He is beholden to Grotius, for inftance, for his diftinction between greatness of mind and juftice, which he makes the bafis of his arguments in the firft and other enfuing chapters, though he takes no notice of the obligation. We do not, however, mention this invidioufly, fince we acknowlege, that whenever our author borrows a thought, he feldom fails to acquit himself of the obligation, by his ingenuity in applying it.

It

It is evident, perhaps too much fo, that this treatise is profeffedly written in vindication of our conduct with regard to our worthy friends the Dutch. However, when we treat of general fubjects with a partial eye towards particular points of proof, our arguments now and then infenfibly become perplexed and contradictory, and our conclufions erroneous. It is with reluctance we shall obferve fome few inftances, wherein this bias has drawn our author from the fide of truth and reason: and though we may not, on this account, esteem him less as a citizen, yet we are bound to cenfure him as a writer.

In the first chapter, this author purfuing the method of Grotius, treats of war and juftice. After enumerating feveral definitions which have been given of war, he gives the preference to that of Mr. Bynkerfhoek; who fays, War is a conteft between independent fovereigns; who are therefore entitled to pursue their own juft rights by force or by artifice.'

Upon this the author observes, that War is faid to be a conteft by force, not, fays he, by juft force only: for, adds he, every kind of force is juft in war: and it is therefore juft, because it is lawful, to take him at any difadvantage; fuch as when he is difarmed; to deftroy him with poifon; to affault him him with artillery and fire-arms, when he perhaps has no fuch weapons; and in a word to deftroy him by every method in our power. Grotius, indeed, differs from this opinion as to poison, and fays, that the law of nations, if not of all, yet of the more civilized, allows not the taking the life of an enemy by poifon, which cuftom, he thinks, was established for general benefit, left danger should be increased too much, fince wars were become fo frequent. But it is probable it was firft introduced by kings. For, if their life be more fecure than that of others, when attacked by arms only, it is on the other hand more in danger of poifon, unless protected by a regard to fome fort of law, and the fear of difgrace and infamy. However, this general confent is much easier to be fuppofed than proved. The Roman confuls, who informed Pyrrhus that one of his people had offered to poifon him, faid, That wars should be waged by arms, and not by poison; but at the fame time they told him, That it was not for his fake they gave him that information; but that they might not incur the infamy of having caused him to be destroy'd in that manner. But if we confult Reafon alone, (that mistress of the law of nations) we fhall find that every thing is lawful against an enemy, as fuch. We war againft an enemy, because we think, that by having offered us an injury we have a right to feek the deftruction of him, and every thing belonging to him: and, as this is the end and defign of our appearing in arms, what matters it by what means we attain that end? You cannot Cc 2

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call that judge an unjust one, who orders an unarmed malefactor to be put to death by an armed executioner. For, fhould you unbind and arm him, it would no longer be inflicting a punishment adequate to his crime; but giving him the chance of his courage or good fortune to escape.

If you think that you are at liberty to make ufe of that fort of force or violence only which your adversary uses against you; you confefs at the fame time his right to be equal to yours, notwithstanding you make war against him on account of the injury he has done you. But your enemy, in respect to you, ftands in the place of the condemned perfon: and you ftand in the fame light in refpect to your enemy: but in the eyes of a third, a friend to both, the cause of each is equally good, and both are in the right.'

However plaufible thefe fentiments may feem, yet, when stript of their fophiftry and refinement, they will perhaps appear to be very unfatisfactory and inconclufive. We may have power to ufe all kinds of force againft an enemy, but we have a right only to ufe juft force. All force is unjust, which is exercised against those who make no refiftance; (except as we shall mention hereafter) and our author himfelf feems to admit this, when. at the end of the chapter he concludes, that force, authority, and refiftance are effential parts of war.' Grotius wifely obferves, that we fhould judge of the means to profecute our right upon the principles of moral juftice, not of phyfical subtlety. If we furprize our enemy in fuch a defenceless ftate, that without force, we may obtain reparation for past injuries, and find fecurity against him for the future; we have no right to destroy him, and all force ufed for that purpose is unjuft. We admit that reafon is the miftrefs of the law of nations; but if we confult her, fhe will not tell us that every thing is lawful against an enemy, as fuch. She will rather inculcate principles of humanity, and direct us to fpare our fpecies, where felf-prefervation does not demand their deftruction.

It is true, in fome cafes it is lawful, by the law of nations, to deftroy an enemy, even where he makes no refiftance; as in taking a citadel by ftorm, for inftance, it is lawful to put every one to the fword without diftin&tion. But this exception rather confirms than falfifies the general doctrine we would eftablifh, and proves that we ought to wage war with as little bloodshed as poffible: for this indifcriminate, and feemingly inhuman flaughter, feems to be allowed, in order to deter the befieged from making a wanton facrifice of lives on both fides, by an obftinate and defperate defence, when there is no probability of maintaining poffeffion.

The

The cafe of the unarmed malefactor, is by no means fimilar to.. the state of the defenceless enemy. We ought not to confound. matters which are determinable by the laws of particular focieties, with those which are governed by the general laws of nature and nations. We fhould not, perhaps, call the judge unjuft, who should order an offender to be put to death by an armed executioner; because a judge acting in a judicial, we would rather fay, a minifterial capacity, may only pafs that fentence: on the criminal, which the laws of his country oblige him to pro-. nounce, and of which he may think the crime deferving *. But if the party injured was the armed executioner, we should deem. it unjuft in him to deftroy the malefactor, unless it was abfolutely neceffary for his own prefervation. Where fentence of death is pronounced by a judge, the criminal is condemned-By whom? Not by the perfon wronged, but by indifferent parties. In the cafe between me and my enemy I act as judge, jury, and executioner. I may be mistaken in the nature of my rights," and as there is no way in which my enemy and I can decide our mutual claims in a judicial courfe of examination, there is more occafion to exercife the duties of humanity, in order to moderate the rigour of unavoidable hostilities.

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In the next chapter the writer confiders, whether a declaration is neceffary to make a war lawful; and concludes in the negative. In difcuffing this point, he examines the feveral authorities on both fides, and then gives his own opinion in the following terms. If we confult reafon, fays he, which is the great touchstone of the law of nations, we fhall find, that nothing more is required than a friendly demand of what has been taken from us by force; nor perhaps is even that friendly demand neceffary, because all ordinances and all laws allow of repelling force by force; and the law of nations requires no folemnity for repelling force. But granting, amongst good people, it is right to deal fairly, and that a demand is requifite, yet, if that be denied, force certainly may be used; though Grotius and fome others think a proclamation fhould precede that force. But the reafons, by which they commonly defend the neceffity of declaring war, are not fatisfactory: that which has been given by Albericus Gentilis + has been difapproved by Grotius; and that which

* Perhaps it may be a question, whether the practice of putting criminals to death, except in cafes of murder, is to be juflified upon the principles of reafon, or in fome ftates, even upon maxims of policy.

+ According to Albericus Gentilis, a declaration is neceffary, that nothing may be done privately or deceitfully. Grotius objects to this

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which Grotius himself has given, as mentioned above, is certainly not much better. A proclamation is nothing more than publishing the will of the prince who makes war; and when an armed force is employed between princes, without a previous declaration, fhall we doubt the will of each prince to wage war? and if we cannot doubt that, it may be then asked, for whose benefit is fuch a declaration? for certainly that is plain, whichis fo publicly acted. Reason, which an excellent author calls the foul of the law of nations-Mere reason, I fay, does not afford any argument to prove a declaration of war neceffary, though it furnishes us with many to prove that it is not neceffary, as has been obferved before.'

Here we differ from the author toto cœlo. We admit, that by the laws and cuftoms of nations, a declaration of war does not feem neceffary: but Reafon, the miftrefs of all laws, declares the neceffity of fuch declaration, in many cafes, to be indifpenfible. She directs us, in all differences, if poffible, to make ufe of her mediation firft, before we proceed to rude force and violence. The writer's conclufions appear to be too general and pofitive; and his reafoning does not comprize the natural diftinctions which arise from the subject in debate.

It is true, that all laws allow of repelling force by force. But we must diftinguish between force immediately employed against the state, by the actual invafion of any of its territories, or making open, preparations for that purpofe; and force ufed indirectly against it, by attacking particular members, feizing their property, and condemning it in a judicial way, under colour of right. In the firft inftance, no doubt, reafon proves that a declaration of war is not neceflary; for there is neither room or time for ber mediation to operate, and by commencing hoftilities, the enemy rejects all appeal to her decifions. In the latter inftance, where the fafety and intereft of the state is not immediately affected, a demand fhould be made of what has been taken by force. Even after a demand, a refufal of justice does not, as our author afferts, imply fuch kind of force as is fufficient to warrant hoftilities without a declaration; unless such

reason, and obferves, that it rather concerns greatnefs of mind than juftice He thinks the neceffity of a declaration is, that the war may manifeftly appear not to have been commenced by private authority, but by the confent of both nations or their fovereigns. This reafon our author juftiy cenfures, and takes notice, that people are not more affured that the war is not commenced by private authority, when a herald comes to declare war with certain ceremonies, than they would be when they fee an army upon their frontiers, commanded by fome principal perfon of the ftate, and ready to enter their country.

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