[56] Thus letters of marque and reprisal, by which individuals are enabled to redress their own wrongs, must issue from the sovereign power, otherwise the hostilities of such individuals would be unlawful. So that here the ACTION would be unlawful, that is unjust, unless performed by an AGENT, who had a commission from public authority.
[57] The three rules above laid down by our author may be illustrated by the three following propositions.—
In the first place, it cannot be denied, that war, in the ABSTRACT, is an evil, but then it is necessary to consider, whether it is not an evil that must, in many cases, be submitted to in order to avoid still greater calamities.
Secondly, in the prosecution of a war, where the advantages, or evils are doubtful, it is necessary to endeavour after the attainment of new confederacies or alliances, that may compensate for the losses sustained, or may open out new channels of trade and commerce, which may supply the place of those that have been closed by the immediate war.
As an illustration of the third point, we may adduce the conduct of King William, after the British Cabinet that met at Tunbridge Wells, August 28, 1698, represented to him how inadequate the spirit of the nation was to enter into a new war, and to bear additional burdens, concluding, "this is the truth of the fact upon which your Majesty will determine what resolution ought to be taken." His Majesty did determine upon war, as the least of all the evils which faced his people, notwithstanding the APPARENT inadequacy of his means. And "in that great war, says Mr. Burke, carried on against Louis the XIV, for near eighteen years, government spared no pains to satisfy the nation, that though they were to be animated by a desire of glory, glory was not their ultimate object: but that every thing dear to them, in religion, in law, in liberty, every thing, which as freemen, as Englishmen, and as citizens of the great commonwealth of Christendom, they had at heart, was then at stake."—Lett. on Regic Peace, p. 90.
[58] Thus when a ship makes an appearance of mounting more guns than she really carries, in order to deter an enemy from attacking her, this may be considered as one of those negative stratagems, or stratagems of dissimulation, to which our author alludes.
[59] Besides the NECESSARY law of nations, which is EQUALLY, and at ALL TIMES binding upon ALL states, there is a POSITIVE law of nations, consisting of THE VOLUNTARY, THE CONVENTIONAL and THE CUSTOMARY law. All of which "proceed from the will of nations,—the VOLUNTARY from their presumed consent, the CONVENTIONAL from an express consent, and the CUSTOMARY from tacit consent: and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of POSITIVE LAW OF NATIONS."—Vattel, Prelim. Sect. 27.
[60] See [b. ii. ch. xxi. sect. 2.] of this treatise.
[61] See [b. ii. ch. xxiii. sect. 7.] ibid.
[62] But such captures cannot be made without authority from the sovereign.