Photo from the American civil war.
§ 287 Foundation of the sovereign's rights against the rebels.IT is a question very much debated, whether a sovereign is bound to observe the common laws of war towards rebellious subjects who have openly taken up arms against him? A flatterer, or a prince of a cruel and arbitrary disposition, will immediately pronounce that the laws of war were not made for rebels, for whom no punishment can be loo severe. Let us proceed more soberly, and reason from the incontestable principles above laid down. In order clearly to discover what conduct the sovereign ought to pursue towards revolted subjects, we must, in the first place, recollect that all the sovereign's rights are derived from those of the state or of civil society, from the trust reposed in him, from the obligation he lies under of watching over the welfare of the nation, of procuring her greatest happiness, of maintaining order, justice, and peace within her boundaries (Book I. Chap. IV). Secondly, we must distinguish the nature and degree of the different disorders which may disturb the state, and oblige the sovereign to take up arms, or substitute forcible measures instead of the milder influence of authority.
§ 288. Who are rebels.The name of rebels is given to all subjects who unjustly take up arms against the ruler of the society, whether their view be to deprive him of the supreme authority, or to resist his commands in some particular instance, and to impose conditions on him.
§ 289. Popular commotion, insurrection. sedition.A popular commotion is a concourse of people who assemble in a tumultuous manner, and refuse to listen to the voice of their superiors, whether the design of the assembled multitude be levelled against the superiors themselves, or only against some private individuals. Violent commotions of this kind take place when the people think themselves aggrieved: and there is no order of men who so frequently give rise to them as the tax-gatherers. If the rage of the malcontents be particularly levelled at the magistrates, or others vested with the public authority, and they proceed to a formal disobedience or acts of open violence, this is called a sedition. When the evil spreads, — when it infects the majority of the inhabitants of a city or province, and gains such strength that even the sovereign himself is no longer obeyed, — it is more usual more particularly to distinguish such a disorder by the name of insurrection.
§ 290. How the sove-All these violences disturb the public order, and are state crimes, even when arising from just causes of complaint. For violent measures are forbidden in civil society: the injured individuals should apply to the magistrate for redress, and if they do not obtain justice from that quarter, they may lay their complaints at the foot of the throne. Every citizen should even patiently endure evils, which are not insupportable, rather than disturb the public peace. A denial of justice on the part of the sovereign, or affected delays can alone excuse the furious transports of a people whose patience has been exhausted, — and even justify them, if the evils be intolerable, and the oppression great and manifest. But what conduct shall the sovereign observe towards the insurgents? I answer, in general, — such conduct as shall at the same time be the most consonant to justice, and the most salutary to the state. Although it be his duty to repress those who unnecessarily disturb the public peace, he is bound to show clemency towards unfortunate persons, to whom just causes of complaint have been given, and whose sole crime consists in the attempt to do themselves justice: they have been deficient in patience rather than fidelity. Subjects who rise against their prince without cause deserve severe punishment: yet, even in this case, on account of the number of the delinquents, clemency becomes a duty in the sovereign. Shall he depopulate a city, or desolate a province, in order to punish her rebellion? Any punishment, however just in itself, which embraces loo great a number of persons, becomes an act of downright cruelty. Had the insurrection of the Netherlands against Spain been totally unwarrantable, universal detestation would still attend the memory of the duke of Alva, who made it his boast that he had caused twenty thousand heads to be struck off by the hands of the common executioner. Let not his sanguinary imitators expect to justify their enormities by the plea of necessity. What prince ever suffered more outrageous indignities from his subjects than Henry the Great, of France? Yet, his victories were ever accompanied by a uniform clemency; and that excellent prince at length obtained the success he deserved: he gained a nation of faithful subjects; whereas the duke of Alva caused his master to lose the United Provinces. Crimes, in which a number of persons are involved, are to be punished by penalties which shall equally fall on all the parties concerned: the sovereign may deprive a town of her privileges, at least, till she has fully acknowledged her fault; as to corporal punishment, let that be reserved for the authors of the disturbances, — for those incendiaries who incite the people to revolt. But tyrants alone will treat, as seditious, those brave and resolute citizens who exhort the people to preserve themselves from oppression, and to vindicate their rights and privileges: a good prince will commend such virtuous patriots, provided their zeal be tempered with moderation and prudence. If he has justice and his duty at heart, — if he aspires to that immortal and unsullied glory of being the father of his people, let him mistrust the selfish suggestions of that minister who represents to him as rebels all those citizens who do not stretch out their necks to the yoke of slavery, — who refuse tamely to crouch under the rod of arbitrary power.
§ 291. He is bound to perform the promises he has made to the rebels.In many cases, the safest, and at the same time the most just method of appeasing seditions, is to give the people satisfaction. And if there existed no reasons to justify the insurrection (a circumstance which, perhaps, never happens), even in such case, it becomes necessary, as we have above observed, to grant an amnesty where the offenders are numerous. When the amnesty is once published and accepted, all the past must be buried in oblivion; nor must any one be called to account for what has been done during the disturbances: and, in general, the sovereign, whose word ought ever to be sacred, is bound to the faithful observance of every promise he has made, even to rebels, — I mean, to such of his subjects as have revolted without reason or necessity. If his promises are not inviolable, the rebels will have no security in treating with him: when they have once drawn the sword, they must throw away the scabbard, as one of the ancients expresses it; and the prince, destitute of the more gentle and salutary means of appeasing the revolt, will have no other remaining expedient than that of utterly exterminating the insurgents. These will become formidable through despair; compassion will bestow succours on them; their party will increase, and the state will be in danger. What would have become of France, if the leaguers had thought it unsafe to rely on the promises of Henry the Great? The same reasons which should render the faith of promises inviolable and sacred between individual and individual, between sovereign and sovereign, between enemy and enemy (Book II. §§ 163, 218, &c. and Book III. § 174), subsist in all their force between the sovereign and his insurgent or rebellious subjects. However, if they have extorted from him odious conditions, which are inimical to the happiness of the nation, or the welfare of the state, — as he has no right to do or grant any thing contrary to that grand rule of his conduct, which is at the same time the measure of his power, he may justly revoke any pernicious concessions which he has been obliged to make, provided the revocation be sanctioned by the consent of the nation, whose opinion he must take on the subject, in the manner and forms pointed out to him by the constitution of the state. But this remedy is to be used with great reserve, and only in matters of high importance, lest the faith of promises should be weakened and brought into disrepute.1
When a party is formed in a state, who no longer obey the sovereign, and are possessed of sufficient strength to oppose him, — or when, in a republic, the nation is divided into two opposite factions, and both sides take up arms, — this is called a civil war. Some writers confine this term to a just insurrection of the subjects against their sovereign, to distinguish that lawful resistance from rebellion, which is an open and unjust resistance. But what appellation will they give to a war which arises in a republic torn by two factions, — or in a monarchy, between two competitors for the crown? Custom appropriates the term of "civil war" to every war between the members of one and the same political society. If it be between part of the citizens on the one side, and the sovereign, with those who continue in obedience to him, on the other, — provided the malcontents have any reason for taking up arms, nothing further is required to entitle such disturbance to the name of civil war, and not that of rebellion. this latter term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. the sovereign, indeed, never fails to bestow the appellation of rebels on all such of his subjects as openly resist him: but, when the latter have acquired sufficient strength to give him effectual opposition, and to oblige him to carry on the war against them according to the established rules, he must necessarily submit to the use of the term "civil war."
§ 293. A civil war produces two independent parties.It is foreign to our purpose in this place to weigh the reasons which may authorize and justify a civil war: we have elsewhere treated of the cases wherein subjects may resist the sovereign (Book I. Chap IV). Setting, therefore, the justice of the cause wholly out of the question, it only remains for us to consider the maxims which ought to be observed in a civil war, and to examine whether the sovereign in particular is, on such an occasion, bound to conform to the established laws of war.
A civil war breaks the bands of society and government, or, at least, suspends their force and effect: it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as thenceforward constituting, at least for a time, two separate bodies, two distinct societies. Though one of the parties may have been to blame in breaking the unity of the state and resisting the lawful authority, they are not the less divided in fact. Besides, who shall judge them? who shall pronounce on which side the right or the wrong lies? On earth they have no common superior. They stand therefore in precisely the same predicament as two nations, who engage in a contest and, being unable to come to an agreement, have recourse to arms.
§ 294. They are to observe the common laws of war.This being the case, it is very evident that the common laws of war, — those maxims of humanity, moderation, and honour, which we have already detailed in the course of this work, — ought to be observed by both parties in every civil war. For the same reasons which render the observance of those maxims a matter of obligation between state and state, it becomes equally and even more necessary in the unhappy circumstance of two incensed parties lacerating their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals:2 — if he does not religiously observe the capitulations, and all other conventions made with his enemies, they will no longer rely on his word: — should he burn and ravage, they will follow his example; the war will become cruel, horrible, and every day more destructive to the nation. The duke de Montpensier's infamous and barbarous excesses against the reformed party in France are too well known: the men were delivered up to the executioner, and the women to the brutality of the soldiers. What was the consequence? the Protestants became exasperated; they look vengeance of such inhuman practices; and the war, before sufficiently cruel as a civil and religious war, became more bloody and destructive. Who could without horror read of the savage cruelties committed by the Baron Des Adrets? By turns a Catholic and a Protestant, he distinguished himself by his barbarity on both sides. At length it became necessary to relinquish those pretensions to judicial authority over men who proved themselves capable of supporting their cause by force of arms, and to treat them, not as criminals but as enemies. Even the troops have often refused to serve in a war wherein the prince exposed them to cruel reprisals. Officers who had the highest sense of honour, though ready to shed their blood in the field of battle for his service, have not thought it any part of their duty to run the hazard of an ignominious death. Whenever, therefore, a numerous body of men think they have a right to resist the sovereign, and feel themselves in a condition to appeal to the sword, the war ought to be carried on by the contending parties in the same manner as by two different nations: and they ought to leave open the same means for preventing its being carried to outrageous extremities, and for the restoration of peace.
When the sovereign has subdued the opposite party, and reduced them to submit and sue for peace, he may except from the amnesty the authors of the disturbances, — the heads of the party: he may bring them to a legal trial, and punish them, if they be found guilty. He may act in this manner particularly on occasion of those disturbances in which the interests of the people are not so much the object in view as the private aims of some powerful individuals, and which rather deserve the appellation of revolt than of civil war. Such was the case of the unfortunate duke of Montmorency: — he took up arms against the king, in support of the duke of Orleans; and being defeated and taken prisoner at the battle of Castelnaudari, he lost his life on a scaffold, by the sentence of the parliament of Toulouse. If he was generally pitied by all men of worth and sentiment, it was because they viewed him rather as an opponent to the exorbitant power of an imperious minister, than as a rebel against his sovereign, — and that his heroic virtues seemed to warrant the purity of his intentions.3
§ 295. The effects of civil war distinguished according to cases.When subjects take up arms without ceasing to acknowledge the sovereign, and only for the purpose of obtaining a redress of their grievances, there are two reasons for observing the common laws of war towards them: — First, an apprehension lest the civil war should become more cruel and destructive by the insurgents making retaliation, which, as we have already observed, they will not fail to do, in return for the severities exercised by the sovereign. 2. The danger of committing great injustice by hastily punishing those who are accounted rebels. The flames of discord and civil war are not favourable to the proceedings of pure and sacred justice: more quiet times are to be waited for. It will be wise in the prince to keep his prisoners, till, having restored tranquillity, he is able to bring them to a legal trial.
As to the other effects which the law of nations attributes to public war, see Chap. XII. of this Book, and particularly the acquisition of things taken in war, — subjects who take up arms against their sovereign without ceasing to acknowledge him, cannot lay claim to the benefit of those effects. The booty alone, the movable property carried off by the enemy, is considered as lost to the owners; but this is only on account of the difficulty of recognising it, and the numberless inconveniences which would arise from the attempt to recover it. All this is usually settled in the edict of pacification, or the act of amnesty.
But, when a nation becomes divided into two parties absolutely independent, and no longer acknowledging a common superior, the state is dissolved, and the war between the two parties stands on the same ground, in every respect, as a public war between two different nations. Whether a republic be split into two factions, each maintaining that it alone constitutes the body of the state, — or a kingdom be divided between two competitors for the crown, — the nation is severed into two parties, who will mutually term each other rebels. Thus there exist in the state two separate bodies, who pretend to absolute independence, and between whom there is no judge (§ 293). They decide their quarrel by arms, as two different nations would do. The obligation to observe the common laws of war towards each other is therefore absolute, — indispensably binding on both parties, and the same which the law of nature imposes on all nations in transactions between state and state.
§ 296. Conduct to be observed by foreign nations.Foreign nations are not to interfere in the internal government of an independent state. (Book II. § 54, &c.) It belongs not to them to judge between the citizens whom discord has roused to arms, nor between the prince and his subjects: both parties are equally foreigners to them, and equally independent of their authority. They may, however, interpose their good offices for the restoration of peace; and this the law of nature prescribes to them. (Book II. Ch. I.) But, if their mediation proves fruitless, such of them as are not bound by any treaty, may, with the view of regulating their own conduct, take the merits of the cause into consideration, and assist the party which they shall judge to have right on its side, in case that party requests their assistance or accepts the offer of it: they are equally at liberty, I say, to do this, as to espouse the quarrel of one nation embarking in a war against another. As to the allies of the state thus distracted by civil war, they will find a rule for their conduct in the nature of their engagements, combined with the existing circumstances. Of this we have treated elsewhere. (See Book n. Chap. XII and particularly §§ 196 and 197.)
1. An instance of this occurs in the transactions which took place after the insurrection at Madrid, in 1766. At the requisition of the Cortes, the king revoked the concessions which he had been obliged to make to the insurgent populace, but he suffered the amnesty to remain in force.
2. The prince of Condé, commander of Louis XIII.'s forces against the reformed party, having hanged sixty-four officers whom he had made prisoners during the civil war, the Protestants resolved upon retaliation; and the duke de Rohan, who commanded them, caused an equal number of Catholic officers to he hanged. See Memoires de Rohan. The duke of Alva made it a practice to condemn to death every prisoner he took from the confederates in the Netherlands, They, on their part, retaliated, and at length compelled him to respect the law of nations and the rules of war in his conduct toward them. Grotius, Ann. lib. ii.
3. See the historians of the reign of Louis XIII.