{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_46564/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_46564","id":"gutenberg_46564","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/46564","summary":null,"tags":["Category: History - Early Modern (c. 1450-1750)","Category: Law & Criminology","Category: Philosophy & Ethics","International law","Natural law","War (International law)"],"text":"Transcriber's notes:\n\n\nSeveral chapters were omitted from the English translation of which\nthis is a transcription. The reasons for this are given in the\nfootnotes.\n\nWords originally printed in Greek are shown that way in some versions\nof this eBook. English transliterations were added to all versions by\nthe Transcribers and are enclosed in {curly braces}.\n\nOther notes will be found at the end of this eBook.\n\n\n\n\n[Illustration]\n\n UNIVERSAL\n CLASSICS\n LIBRARY\n\n EDITOR'S\n AUTOGRAPH EDITION\n\n ATTEST:\n\n Robert Arnot\n MANAGING EDITOR\n\n\n\n\n[Illustration]\n\n UNIVERSAL CLASSICS\n LIBRARY\n\n ILLUSTRATED\n WITH PHOTOGRAVURES\n ON JAPAN VELLUM\n HAND PAINTED\n REPRODUCTIONS\n AND FULL PAGE\n PORTRAITS\n OF\n AUTHORS\n\n M. WALTER DUNNE\n PUBLISHER\n NEW YORK AND LONDON\n\n\n\n\n COPYRIGHT, 1901,\n BY\n M. WALTER DUNNE,\n PUBLISHER\n\n\n\n\nGENERAL PREFACE\n\n\n[Illustration]\n\nOf the Library of Universal Classics and Rare Manuscripts, twenty\nvolumes are devoted to the various branches of Government, Philosophy,\nLaw, Ethics, English and French Belles Lettres, Hebraic, Ottoman, and\nArabian Literature, and one to a collection of 150 reproductions,\nbound in English vellum, of the autographs, papers and letters of\nRulers, Statesmen, Poets, Artists and Celebrities ranging through\nthree centuries, crowned by an illuminated facsimile of that historic\nDocument, the Magna Carta.\n\nThe series in itself is an epitome of the best in History, Philosophy\nand Literature. The great writers of past ages are accessible to\nreaders in general solely through translations. It was, therefore,\nnecessary that translations of such rare Classics as are embodied\nin this series should be of the best, and should possess exactitude\nin text and supreme faithfulness in rendering the author's thought.\nUnder the vigilant scholarship of the Editorial Council this has been\naccomplished with unvarying excellence. The classification, selection\nand editing of the various volumes have been the subject of much\nearnest thought and consultation on the part of more than twenty of the\nbest known scholars of the day.\n\nThe Universities of Yale, Washington, Cornell, Chicago, Pennsylvania,\nColumbia, London, Toronto and Edinburgh are all represented among\nthe contributors, the writers of special introductions, or upon\nthe consulting staff, the latter including the Presidents of five\nof the Universities mentioned. Among others who contribute special\nessays upon given subjects may be mentioned the late Librarian of\nthe British Museum, Dr. Richard Garnett, who furnishes the essay\nintroducing \"Evelyn's Diary.\" From the Librarian of the National\nLibrary of France, L\u00e9on Vall\u00e9e, comes the fascinating introduction\nto the celebrated \"Memoirs of the Duc de Saint-Simon.\" The scholarly\nminister to Switzerland (late First Assistant Secretary of State), Dr.\nDavid J. Hill, lent his wide reading to the brilliant and luminous\nessay that precedes the \"Rights of War and Peace.\" The resources of the\nCongressional Library at Washington, as well as of foreign libraries,\nhave all been drawn upon in the gigantic task of compressing into the\nsomewhat narrow limits of twenty volumes all that was highest, best,\nmost enduring and useful in the various ramifications of literature at\nlarge.\n\nThe first section of the Library is devoted entirely to the manuscript\nreproductions of the autographs of celebrated men in all ranks and\nphases of life, covering a period of three centuries. They are, in\nfact, the American edition of the reproduction of rare and celebrated\nautographs drawn from the British Museum that was issued in England\nunder the editorship of the Assistant Keeper of the Manuscripts. They\nafford an opportunity to the inquiring reader to study the characters\nof Rulers, Statesmen, Writers, and Artists through the medium of their\nchirography.\n\nIt has long been recognized that character is traceable through\nhandwriting. So it is interesting to discern in the characters traced\nby Henry VIII the hardened, sensual and selfish character of that\nautocrat and polygamist; in the writing of Thomas Wolsey, those crafty\ntraits combined with perseverance and mock humility which raised him\nwellnigh to supremacy in the realm and led him finally to a downfall\nmore complete than any we read of in English history; and in that of\nCharles V, of Spain, the hard-headed continence of character and superb\ncommon sense which enabled him at the height of glory to retire to a\nmonastery while yet there was \"daylight in life,\" as he expressed it,\n\"for the making of his soul.\" Apart from the historical interest of\nthese Documents, this study of character as revealed in them will prove\nfascinating to thinking minds.\n\nThe Magna Carta, greatest of all historical charters wrung from the\nvarious kings of England from Henry I downward, was granted by King\nJohn at the pressing instance of the Barons and Commons of England\ntoward the end of his ill-judged and unfortunate reign. Of this\nDocument, celebrated and historic as it is, but little is known at\nlarge. Although Blackstone and other prominent lawyers have written\nupon it, information about it is hard to obtain. No reproduction of\nthe original Document has ever been offered to American collectors.\nThis facsimile is illuminated in colors with the shields of many of the\nPeers who compelled King John to accede to their demands for civil and\nreligious liberty. The original charter was signed at a place called\nRunnymede (the Council Meadow) a spot between Windsor and Staines,\non the 15th of June, 1215, about a year before the death of John.\nIt practically guaranteed to the Commons of England all the civil\nand religious rights they enjoy to-day. It dealt with testamentary\nlaw as well, securing to widows all the legal rights which they\nto-day possess. It dealt with the rights of accused persons; with\nmilitary service; with feudal tenure; with taxation, and it limited\nthe heretofore autocratic power of the King to an extent unknown\nbefore in the history of the world. If we except the Declaration of\nIndependence, it is the most interesting historical record of all time.\n\nThe Second Section of the Library (ten volumes) is devoted to the\npresentation of Government, Philosophy, Law and Ethics. This section\nembraces such names as Grotius, Plato, Sir George Cornewall Lewis, Adam\nSmith, Hamilton, Madison, Jay, Walter Bagehot, Spinoza, Schopenhauer,\nMachiavelli, as well as those builders of Ideal Governments, More,\nBacon, Campanella and Rousseau.\n\nOf all benefactors in Literature of the human race, Grotius may\nperhaps rank as first among his equals. Centuries have borne witness\nto the justness of his premises and the wisdom of his conclusions. The\nprinciples of national law laid down by him are to-day accepted as the\naxioms of the Science. Among the nations, perhaps the United States is\nmost deeply interested in the right administration of the principles\naffirmed by Grotius in his gigantic work on the \"Rights of War and\nPeace,\" and it was therefore most fitting, when the recent peace\nconference at The Hague completed the great structure of international\ncomity, the foundations of which were laid by Grotius in 1625, that a\nsilver wreath was laid by the representative of the United States upon\nthe grave of the man to whom the Conference owed its initial impulse,\nalthough at a distance in time of nearly three centuries.\n\nWhen the Publisher determined, under the advice of his Editorial\nCouncil, to publish Grotius, he found that only two volumes of the\nfirst edition were available in the Library of Congress. At much\nexpense and trouble, he instituted a search in Europe and finally\nobtained the missing volume, which he presented to the Congressional\nLibrary, where it now is.\n\nSir George Cornewall Lewis's \"Government of Dependencies\" is\ncharacterized by the accuracy of its information. It is a reliable\ntext book for the guidance of any nation in the treatment of its\ndependencies and colonies. It is a Classic that will survive as long\nas colonization remains to be done, and it is remarkable that although\nit was published for the first time sixty years ago, the illustrations\nafforded by the last two generations support the justice of its\nprinciples and the exactness of its deductions.\n\nAdam Smith's \"Essay on Colonies\" presents an introductory view of\nthe principles governing colonial policy. It is a fitting work to go\nhand in hand with the greater one of Sir George Cornewall Lewis. It\nis of practical use to American Statesmen, since the United States\nseems at present to be entering upon a world-wide colonial policy. Its\npractical wisdom, which has made it a Classic for all times, finds a\nspecial applicability in the conditions of to-day, for Adam Smith was\na theorist in the best sense of the word, that is to say, he was a man\nwhose breadth of view, instead of unfitting him for practical details,\nenabled him to deduce from the lessons of history and experience the\nright solutions for the problems of Colonial policy.\n\nPlato's \"Republic\" and \"Statesman\" must be regarded to-day not merely\nas historical records of a by-gone philosophy, but as living, teaching\ndissertations upon theories which cannot fail to awaken in studious\nminds the highest ideals of life and government. Modern problems\nstated in the light of Plato's philosophy, as it is expressed in\nthese books, will find readier solutions when examined in the light\nof its principles. No student of sociology, of politics, national and\nmunicipal, or of government in all its many-sided aspects, can afford\nto be without a knowledge of these immortal discourses.\n\nGoldwin Smith has declared that of all expositions of constitutional\nGovernment, \"The Federalist\" ranks the highest. When Hamilton, Madison,\nand Jay first conceived the idea of printing in the common tongue their\nideas upon the principles of free government, they unwittingly laid\nthe foundations of the best commentary on the principles of popular\ngovernment ever written. Political science owes to them the most\nimportant contribution to its literature made since its birth. The\nEssays are equally admirable for sagacity, simplicity, and patriotism,\nand while The Federalist will never be read for pleasure, it contains a\nmine of wisdom for the student and the constitutional lawyer, and as a\ntext book of political science is without a parallel.\n\nWhen Bagehot issued his work on the English Constitution, it was hailed\nby the critics as the most wonderful and philosophical dissertation on\nthe subject in any language or from any pen. John Stuart Mill used to\nsay that of all great subjects much remained to be written, and that\nespecially was this true of the English Constitution. Bagehot's work,\nalthough affording the conclusion that monarchy in England exists as a\nlogical necessity, is so unbiased in its premises, so logical and clear\nin its deductions, that this manifest fairness, although leading one to\nconclusions distasteful to a republican mind, must endear him to his\nreaders. Dealing with a subject somewhat dry in its details, he invests\ninanimate objects with so much light that they become realities. In the\nhighest sense he combines popularity and scholarship.\n\nSpinoza's philosophy may be traced both to the influence of Bacon, his\npredecessor, and to Descartes, his contemporary. Its combination of\npositivism with the enthusiasm of piety characterizes his philosophy\nas unique in itself, for while treating man from a purely mechanical\nstandpoint, it asserts that the mechanism itself is entirely divine.\nSpinoza was a voluntary martyr in the cause of Free Thought. He was at\nthe same time both Pantheist and Monist, yet sincere in his devotion to\nnature and the God of nature. His religion naturally made him a Monist,\nwhile his philosophy led him to express the Pantheism that the lover of\nGod in Nature cannot avoid. While he renounced his Judaism and entered\nthe ranks of the Christian philosophers, he never received baptism. He\nmay be ranked among the greatest of the German mystics, whose work had\nsuch profound influence upon the dogmatic Christianity of a later day.\nThe epithet conferred on him, namely, \"God-intoxicated,\" summarizes\nhis whole attitude and the character of his philosophy better than any\nlengthy dissertation.\n\nWhen Schopenhauer began to write, he declared himself a true disciple\nof Kant, but he modifies and adapts Kant's \"Critique of Pure Reason\"\nto such an extent that he reaches the attitude of opposition. This\nattitude he manifests throughout all his writings. He is truly an\nApostle of Protest, but in spite of his positivist contradictions\nand his materialistic pantheism, he opens up a mine of suggestions\nto the literary and philosophical student. In spite of the apparent\ntragedy due to the conflict within him, we cannot help gathering from\nSchopenhauer an immensity of what is true, what is good and what is\nexcellent. One thing especially noticeable about his writings is that\nwhile German philosophers are often ponderous and in fact nebulous,\nSchopenhauer is always clear, original, and readable.\n\nTo Machiavelli belongs by acclaim the honor of having written the\nideal biography of a State. His clear, straightforward, concise\nstatement of conditions and characters as he saw then is a model for\nall writers of record. He was the first great Italian historian, and\nno man has ever been more ardent in his patriotism or a more earnest\nsupporter of government for and by the people. The greatest tribute to\nhis inflexible honesty of character is the fact that while no man had\ngreater opportunities to enrich himself at the cost of the State, he\ndied leaving his family in the greatest poverty. His varied political\nexperience, and his assiduous study of classic writers, gave him the\nability as well as the desire to write the history of his native\nState. Time has pronounced this History to be a classic worthy of\npreservation, and the perspective of time has also enabled us to form a\njuster and greater estimate of its author.\n\nThe Ideal Republics and Empires that have been constructed from time to\ntime by political dreamers have all the attractiveness of works like\nPilgrim's Progress or Gulliver's Travels, combined with a philosophy\nand political insight that give them a double claim to be considered\nClassics. Modern progress may be more deeply indebted than we can\nestimate to the fantasies and airy castles of men like Rousseau, More,\nand Campanella. The four Ideal Republics or Governments described in\nthis volume are perhaps the most famous of all, since they rank not\nonly as great creations of the imagination but as literature of the\nhighest class; and their writers have a further claim upon posterity\nfrom the fact that they helped to make history.\n\nThe Third and concluding Section of the Library deals with that\ntremendous range of world-wide literature which we call, for want of\na better name, Belles Lettres. Goethe contributes his brilliant and\nsagacious observations on men and things as he communicated them to\nEckerman. Landor, of whom Swinburne has said that Milton alone stands\nhigher, both in prose and verse, furnishes us with his Classical\nConversations. Montesquieu and Goldsmith are drawn on for their\nPersian and Chinese Letters. Lord Chesterfield gives us the irony and\nhard-headed criticism combined with worldly common sense contained in\nthe Letters to His Son, and the various names best known in French\nand English Belles Lettres yield what is greatest in them. Ottoman\nLiterature, comprising Arabian, Persian, and Hebraic Poems, affords\nthe reader an insight into the romantic and dramatic character of the\nOriental. The Dabistan, possibly the most extraordinary book ever\nwritten in the East, finds itself at home in this section, while the\nLiterature of the Hebrews is ideally represented in that most wonderful\nof all monuments of human wisdom, and perhaps folly, the \"Talmud,\"\ntogether with the basis of modern metaphysics, the \"Kabbala.\"\n\nThe Sufistic Quatrains of Omar Khayyam are here for the first time\npresented complete in a collection of this order. The various editions\nof Fitzgerald are reprinted, collated, and to them is added the\nvaluable Heron-Allen analysis of Fitzgerald's sources of inspiration.\nThe very rare Whinfield version is found here complete; and for the\nfirst time in English appears M. Nicolas' French transcription of the\nTeheran Manuscript. It is safe to say that any lover of Omar wishing to\nadd to his collection the versions here quoted would be compelled to\ndisburse more than one hundred times the amount this book will cost him.\n\nWhile the Library of Universal Classics does not claim to be the\nfinal condensation of the treasure houses of human philosophy and\nlore, whether practical or ideal, it does most emphatically assert\nits right to be called the most useful, most attractive, and most\nrepresentative selection, within the limits assigned to it, of those\nworld-masterpieces of literature which men, for lack of a more luminous\nname, call Classics.\n\n Robert Arnot\n\n\n[Illustration: _HUGO GROTIUS_\n\n_From an Original Painting._]\n\n\n\n\n[Illustration]\n\n THE RIGHTS OF\n WAR AND PEACE\n\n INCLUDING THE\n LAW OF NATURE\n AND OF NATIONS\n\n TRANSLATED FROM THE ORIGINAL LATIN OF\n\n GROTIUS\n\n WITH NOTES AND ILLUSTRATIONS FROM\n POLITICAL AND LEGAL WRITERS\n\n BY\n A. C. CAMPBELL, A. M.\n\n WITH AN INTRODUCTION BY\n DAVID J. Hill,\n Assistant Secretary of State of the United States\n\n\n M. WALTER DUNNE, PUBLISHER\n NEW YORK & LONDON\n\n\n\n\n COPYRIGHT, 1901,\n BY\n M. WALTER DUNNE,\n PUBLISHER\n\n\n\n\nILLUSTRATIONS\n\n\n HUGO GROTIUS _Frontispiece_\n From an original painting.\n\n WAR 109\n By Gari Melchers,\n From a panel painting in Library of Congress.\n\n PEACE 213\n By Gari Melchers,\n From a panel painting in Library of Congress.\n\n WAR AND PEACE 307\n Frontispiece to a rare edition of Grotius.\n\n\n\n\nCONTENTS\n\n\n _BOOK I._\n\n CHAPTER PAGE\n\n Introduction 1\n\n I. On War and Right 17\n\n II. Inquiry into the Lawfulness of War 31\n\n III. The Division of War into Public and Private, and the\n Nature of Sovereign Power 55\n\n\n _BOOK II._\n\n I. Defense of Person and Property 73\n\n II. The General Rights of Things 85\n\n III. On the Original Acquisition of Things, and the Right of\n Property in Seas and Rivers 103\n\n IV. Title to Desert Lands by Occupancy, Possession, and\n Prescription 109\n\n IX. In What Cases Jurisdiction and Property Cease 117\n\n X. The Obligation Arising from Property 123\n\n XI. On Promises 131\n\n XII. On Contracts 144\n\n XIII. On Oaths 160\n\n XV. On Treaties and on Engagements Made by Delegates\n Exceeding Their Powers 166\n\n XVI. The Interpretation of Treaties 176\n\n XVII. On Damages Occasioned by Injury, and the Obligation to\n Repair Them 195\n\n XVIII. On the Rights of Embassies 202\n\n XIX. On the Right of Burial 213\n\n XX. On Punishments 220\n\n XXI. On the Communication of Punishment 256\n\n XXII. On the Unjust Causes of War 267\n\n XXIII. On Doubtful Causes 274\n\n XXIV. Precautions against Rashly Engaging in War, Even upon\n Just Grounds 280\n\n\n _BOOK III._\n\n I. What Is Lawful in War 290\n\n II. In What Manner the Law of Nations Renders the Property of\n Subjects Answerable for the Debts of Sovereigns. The\n Nature of Reprisals 307\n\n III. On Just or Solemn War According to the Law of Nations on\n Declarations of War 314\n\n IV. On the Right of Killing an Enemy in Lawful War and\n Committing Other Acts of Hostility 323\n\n V. On the Right to Lay Waste an Enemy's Country and Carry Off\n His Effects 332\n\n VI. On the Acquisition of Territory and Property by Right of\n Conquest 334\n\n VII. On the Right over Prisoners of War 345\n\n VIII. On Empire over the Conquered 348\n\n IX. Of the Right of Postliminium 351\n\n XI. The Right of Killing Enemies, in Just War, to be Tempered\n with Moderation and Humanity 359\n\n XII. On Moderation in Despoiling an Enemy's Country 365\n\n XIII. On Moderation in Making Captures in War 369\n\n XV. On Moderation in Acquiring Dominion 372\n\n XVI. On Moderation with Respect to Things Excluded from the\n Right of Postliminium by the Law of Nations 375\n\n XVII. Respecting Those Who Are Neutral in War 377\n\n XIX. On Good Faith between Enemies 379\n\n XX. On the Public Faith by Which War Is Concluded; Comprising\n Treaties of Peace, and the Nature of Arbitration,\n Surrender, Hostages, Pledges 385\n\n XXI. On Faith During the Continuance of War, on Truces,\n Safe-Conducts, and the Redemption of Prisoners 403\n\n XXII. On the Faith of Those Invested with Subordinate Powers\n in War 411\n\n XXIV. On Tacit Faith 415\n\n XXV. Conclusion 417\n\n\n INDEX 419\n\n\n\n\nINTRODUCTION\n\nTHE WORK AND INFLUENCE OF HUGO GROTIUS.\n\n\nThe claims of the great work of Grotius, \"_De Jure Belli ac Pacis_,\"\nto be included in a list of Universal Classics, do not rest upon\nthe felicity of style usually expected in a classic composition.\nHis work is marked by frequent rhetorical deformities, tedious and\ninvolved forms of reasoning, and perplexing obscurities of phraseology\nwhich prevent its acceptance as an example of elegant writing.\nNotwithstanding these external defects, it is, nevertheless, one of the\nfew notable works of genius which, among the labors of centuries, stand\nforth as illustrations of human progress and constitute the precious\nheritage of the human race.\n\nIf it is not literature in the technical sense, the masterpiece of\nGrotius is something higher and nobler,--a triumph of intelligence\nover irrational impulses and barbarous propensities. Its publication\nmarks an era in the history of nations, for out of the chaos of lawless\nand unreasoning strife it created a system of illuminating principles\nto light the way of sovereigns and peoples in the paths of peace and\ngeneral concord.\n\n\nI. THE REIGN OF WAR.\n\nThe idea of peaceful equity among nations, now accepted as a human\nideal, though still far from realization, was for ages a difficult, if\nnot an impossible, conception. All experience spoke against it, for war\nwas the most familiar phenomenon of history.\n\nAmong the Greek city-states, a few temporary leagues and federations\nwere attempted, but so feeble were the bonds of peace, so explosive\nwere the passions which led to war, that even among the highly\ncivilized Hellenic peoples, community of race, language, and religion\nwas powerless to create a Greek nation. It was reserved for the\nmilitary genius of Alexander the Great, at last, by irresistible\nconquest, to bring the Greek Empire into being, to be destroyed in turn\nby superior force.\n\nThe Roman Empire almost achieved the complete political unity of\nEurope, and bound parts of three continents under one rule, but the\ncorruption of the military power which held it together led to its\ninevitable dismemberment.\n\nAfter the conflicts of the barbaric kingdoms which followed the\ndissolution of the Western Empire were ended by the predominance of the\nFrankish monarchy, the world believed that the _Pax Romana_ was to be\nrestored in Europe by the hand of Charles the Great; but the disruptive\nforces were destined to prevail once more, and the Holy Roman Empire\nnever succeeded in reviving the power of ancient Rome. And thus the\ndream of a universal monarchy, of a central authority able to preside\nover kings and princes, adjusting their difficulties, and preserving\nthe peace between them, was at last proved futile.\n\nIn each of the great national monarchies that had already risen or were\nstill rising on the ruins of imperial dominion, particularly in France,\nEngland, Holland, and the States of Germany, a continuous internal\nconflict over questions of religion complicated the bitterness and\ndestructiveness of foreign wars until Europe was reorganized by the\nPeace of Westphalia, in 1648.\n\nIt was in the midst of these wars that Grotius was born. He saw his own\ncountry rising from a baptism of blood and all Europe rent and torn by\nthe awful struggle of the Thirty Years' War, in the midst of which his\ngreat work was written and to whose conclusion it served as a guide\nand inspiration. The Empire, dismembered, had been reduced to almost\ncomplete impotence, the Church had been disrupted, and no international\nauthority was anywhere visible. Amid the general wreck of institutions\nGrotius sought for light and guidance in great principles. Looking\nabout him at the general havoc which war had made, the nations hostile,\nthe faith of ages shattered, the passions of men destroying the\ncommonwealths which nourished them, he saw that Europe possessed but\none common bond, one vestige of its former unity,--_the human mind_. To\nthis he made appeal and upon its deepest convictions he sought to plant\nthe Law of Nations.\n\n\nII. THE PREDECESSORS OF GROTIUS.\n\nIt is historically accurate to say, that, until formulated by Grotius,\nEurope possessed no system of international law. Others had preceded\nhim in touching upon certain aspects of the rights and duties of\nnations, but none had produced a system comparable to his.\n\nThe earliest attempt to formulate recognized international customs\nwas the formation of the early maritime codes, rendered necessary by\nthe expansion of medi\u00e6val commerce from the end of the eleventh to\nthe end of the sixteenth century, such as the \"_Jugemens d' Ol\u00e9ron_,\"\nadopted by the merchants of France, England, and Spain, and reissued\nunder other names for the merchants of The Netherlands and the Baltic.\n\"_The Consolato del Mare_,\" a more elaborate compilation, was made,\napparently at Barcelona, about the middle of the fourteenth century,\nand accepted generally by the traders of the chief maritime powers. It\nwas in the cradle of commerce, therefore, that international law awoke\nto consciousness.\n\nAs the Church was often intrusted with the task of pacification, it\nis but natural to look among her representatives for the earliest\nwriters on the laws of international relations. It is, in fact, among\nthe theological moralists that we find the first students of this\nsubject. As early as 1564, a Spanish theologian, Vasquez, conceived\nof a group of free states with reciprocal rights regulated by _jus\nnaturale et gentium_, without regard to a world-power, either imperial\nor ecclesiastical. In 1612, Saurez pointed out that a kind of customary\nlaw had arisen from the usages of nations, and distinctly described a\nsociety of interdependent states bound by fundamental principles of\njustice.\n\nAt the close of the fifteenth and the beginning of the sixteenth\ncenturies, a series of circumstances arose necessitating the extension\nof jurisprudence beyond its ancient boundaries, and thus tending to\nproduce a group of international jurists. Among the juristic writers\nof this time are Balthazar Ayala, a Spanish jurisconsult, who died in\n1584, having written in a historico-judicial spirit on the subject\nof war in his \"_De Jure et Officiis Belli_\"; Conrad Brunus, a German\njurist, who wrote of the rights and duties of ambassadors in his\n\"_De Legationibus_,\" published in 1548; and pre-eminent above all,\nAlbericus Gentilis, an Italian professor of jurisprudence and lecturer\nat Oxford, a writer of force and originality, who published his \"_De\nLegationibus_\" in 1583 and his \"_De Jure Belli_\" in 1589.\n\n\nIII. THE LIFE AND PERSONALITY OF GROTIUS.\n\nHUGO GROTIUS, to use the Latin form of his name by which he is best\nknown, or Hugo de Groot as he is called in Holland, descended from a\nrace of scholars and magistrates, was born at Delft, on April 10th,\n1583. His family history has been related with much detail by De\nBurigny, in his \"_Vie de Grotius_,\" published in French at Amsterdam\nin 1754; and by Vorsterman van Oyen, in his \"_Hugo de Groot en Zijn\nGesclacht_,\" a complete genealogy in Dutch, published at Amsterdam\nin 1883, which gives the descendants of Grotius down to the present\ngeneration. His origin is traced from a French gentleman, Jean Cornets,\nwho took up his residence in The Netherlands in 1402. His descendant,\nCornelius Cornets, married the daughter of a burgomaster of Delft on\ncondition that the future children of this marriage should bear the\nname of their mother's family, in order to perpetuate the distinction\nwhich it had achieved. The maternal name imposed by Cornelius Cornets's\nDutch father-in-law, Dirk van Kraayenburg de Groot, was de Groot,\nmeaning the Great, and is said to have been bestowed for signal\nservices rendered to his country by the first who had borne it four\nhundred years before. From this marriage sprung a Hugo de Groot,\ndistinguished for his learning in Greek, Latin, and Hebrew and five\ntimes burgomaster of his native city. His eldest son, Cornelius, was a\nnoted linguist and mathematician who studied law in France and received\nhigh office in his own country, afterward becoming a professor of law\nand many times rector of the University of Leyden. Another son, John\nde Groot, the father of Hugo Grotius, studied there under the famous\nLipsius, who speaks of him with the highest commendation. Four times\nburgomaster of Delft, John de Groot became curator of the University of\nLeyden, a position which he filled with great dignity and honor.\n\nIn his earliest years the young Hugo gave evidence of marked and varied\nability. At eight he wrote Latin verses which betrayed poetic talent;\nat twelve he entered the University where he became a pupil of that\nprince of scholars, Joseph Scaliger, who directed his studies; and\nat fifteen he defended \"with the greatest applause\" Latin theses in\nphilosophy and jurisprudence. His fame as a prodigy of diversified\nlearning spread far and wide, and great scholars declared they had\nnever seen his equal.\n\nGrotius had won celebrity even in foreign lands when, in 1600, at the\nage of seventeen, he was admitted to the bar. The youthful prodigy\nhad already accompanied the Grand Pensionary, John of Oldenbarneveld\non a special embassy to France, where he was presented to Henry IV,\nwho bestowed upon him his portrait together with a gold chain, and\ngraciously called him \"The Miracle of Holland.\" At Orleans he was made\na Doctor of Laws.\n\nMarried in 1609 to Marie van Reigersberg, whose devotion was worthy of\nhis deep affection, and loaded with public honors, having been named\nthe official historian of the United Provinces and the advocate-general\nof two provinces, Holland and Zeeland, Grotius set his hand to a work\nentitled \"_Mare Librum_,\" in which he defended the freedom of the sea\nand the maritime rights of his country against the arrogant pretensions\nof the Portuguese in suppressing the commerce of other nations in\nEastern waters,--a treatise destined to become still more celebrated in\nthe history of international law by Selden's reply, \"_Mare Clausum_,\"\nwritten in 1635. Next, turning his attention to the history of The\nNetherlands, he devoted himself for a time to his \"Annals of the War of\nIndependence.\"\n\nIn 1613, Grotius added to his laurels as poet, jurist, and historian\nby entering the field of politics, and he was appointed Pensionary of\nRotterdam upon the condition that he should continue in office during\nhis own pleasure. It was during a visit to England upon a diplomatic\nmission in this same year that he met the great scholar Isaac Casaubon,\nwho said in a letter to Daniel Heinsius: \"I cannot say how happy I\nesteem myself in having seen so much of one so truly great as Grotius.\nA wonderful man! This I knew him to be before I had seen him; but the\nrare excellence of that divine genius no one can sufficiently feel who\ndoes not see his face and hear him speak. Probity is stamped on all his\nfeatures.\"\n\nClosely related by personal friendship as well as by his official\nduties to the Grand Pensionary, John of Oldenbarneveld, Grotius was\ndestined to share with that unfortunate patriot the proscription and\npunishment which Maurice of Orange visited upon the two confederates\nin the defense of religious tolerance. Risking all as the apostles of\npeace, they were soon condemned to be its martyrs. Oldenbarneveld,\nhaving incurred the bitter hatred of the Stadtholder, was condemned\nto death by decapitation on May 12th, 1619. Grotius, less offensive\nto Maurice on account of his youth and his gracious personality, was\nsentenced six days later to perpetual imprisonment. On the 6th of June,\n1619, he was incarcerated in the fortress of Loevestein.\n\nRigorously treated at first, his docility and resignation soon won the\nrespect and affection of his keepers. Writing materials and books were\nin time accorded him, and finally, on condition that she would continue\nto share his captivity, he was granted the presence of his wife. The\nstudious prisoner and his devoted companion completely disarmed all\nsuspicion of an intention to escape, and the ponderous chest in which\nbooks came and went continued to bring periodic consolation to the\nmind of the busy scholar. A treatise on the truth of the Christian\nreligion, a catechism for the use of his children, a digest of Dutch\nlaw, and other compositions served to occupy and alleviate the weary\nmonths of confinement, until one day when the time seemed opportune\nMadame Grotius secretly inclosed her husband in the great chest and\nit was borne away by two soldiers. Descending the stone steps of the\nprison the bearers remarked that the trunk was heavy enough to contain\nan Arminian, but Madame Grotius's jest on the heaviness of Arminian\nbooks smoothed over the suspicion, if one was really entertained, and\nthe great jurist was sent in the chest safe to Gorcum, attended by a\nfaithful domestic, where in the house of a friend the prisoner emerged\nwithout injury and in the guise of a stone mason hastened to Antwerp.\nFrom Antwerp he took refuge in France, where he arrived in April, 1621,\nand was joined by his faithful wife at Paris in the following October.\n\nThe bitterness of exile was now to be added to the miseries of\nimprisonment, for Grotius was not only excluded from The Netherlands,\nbut in extreme poverty. His letters reveal his anguish of spirit at\nthis period, but a generous Frenchman, Henri de M\u00eame, placed his\ncountry house at Balagni at his disposition, and there, supported by\na small pension, which Louis XIII had graciously accorded him, though\nirregularly and tardily paid, Grotius commenced his great work, \"_De\nJure Belli ac Pacis_,\" in the summer of 1623.\n\nMuch speculation has been indulged in regarding the causes which led\nto the composition of this masterpiece, but a recent discovery has\nrendered all this superfluous, as well as the ascription of special\nmerit to the Counselor Peyresc for suggesting the idea of the work. It\nis, indeed, to the pacific genius of Grotius more than to all other\ncauses that the world owes the origin of his great work; for it sprang\nfrom his dominant thought, ever brooding on the horrors of war and\nthe ways of peace, during more than twenty years, and never wholly\nsatisfied till its full expression was completed.\n\nIn the winter of 1604, there had sprung out of his legal practice the\nidea of a treatise entitled \"_De Jure Praedae_,\" fully written out,\nbut never printed by its author. The manuscript remained unknown by\nall his biographers until it was brought to light and printed under\nthe auspices of Professor Fruin at The Hague in 1868. This interesting\ndocument proves that not only the general conception but the entire\nplan and even the arrangement of the \"_De Jure Belli ac Pacis_\" were\nin the mind of Grotius when he was only twenty-one years of age. The\ndifference between the earlier work and the later is chiefly one of\ndetail and amplification, the difference which twenty years of reading,\nexperience, meditation and maturity of faculty would inevitably create.\n\nThe curious may find in his letters the almost daily chronicle of his\nprogress with his book to the time of its publication after excessive\nlabors lasting more than a year. In March, 1625, the printing of the\nfirst edition, which had occupied four months, was completed and copies\nwere sent to the fair at Frankfort. His honorarium as author consisted\nof two hundred copies, many of which he presented to his friends. From\nthe sale of the remainder at a crown each, he was not able to reimburse\nhis outlay. In the following August he wrote to his father and brother\nthat if he had their approbation and that of a few friends, he would\nhave no cause for complaint but would be satisfied. Louis XIII, to\nwhom the work was dedicated, accepted the homage of the author and\na handsomely bound copy, but failed to exercise the grace customary\nwith monarchs by according a gratification. At Rome, the treatise was\nproscribed in the index in 1627. Almost penniless and suffering from\nhis protracted toil, Grotius seemed destined to neglect and oblivion,\nyet from his exile he wrote to his brother: \"It is not necessary to ask\nanything for me. If my country can do without me, I can do without her.\nThe world is large enough....\"\n\nInvited to enter the service of France by Richelieu, Grotius would not\naccept the conditions which the Cardinal wished to impose,--such at\nleast is the inevitable inference from his letters. His pension was not\npaid and his circumstances became so serious that one of his children\nhad but a single coat. At length, pushed to the utmost extremity\nof want and instigated by his energetic wife, Grotius resolved to\nreturn to Holland. Driven from Rotterdam to Amsterdam, where he\nhoped to settle down as a lawyer, the States General twice ordered\nhis arrest and named a price for his delivery to the authorities.\nThe new Stadtholder, Frederick Henry, who, before succeeding his\nbrother Maurice, had written kindly to Grotius after his escape from\nimprisonment, now approved his proscription. Abandoned by his prince\nas well as by his countrymen, Grotius once more turned his face toward\nexile and set out for Hamburg.\n\n\nIV. THE WORK OF GROTIUS.\n\nIt may be of interest at this point in the career of Grotius to\ndescribe briefly the character of the great work which was soon to win\nfor him a new celebrity, and materially change his prospects in life.\n\nThe inspiration of his \"_De Jure Belli ac Pacis_\" was the love of\npeace, yet he was far from being one of those visionaries who totally\ncondemn the use of armed force and proscribe all war as wrong and\nunnecessary. On the contrary, he seeks to discover when, how, and by\nwhom war may be justly conducted.\n\nHis plan of treatment is as follows:--\n\n In the First Book, he considers whether any war is just, which leads\n to the distinction between public and private war, and this in turn\n to a discussion of the nature and embodiment of sovereignty.\n\n In the Second Book, the causes from which wars arise, the nature\n of property and personal rights which furnish their occasions, the\n obligations that pertain to ownership, the rule of royal succession,\n the rights secured by compacts, the force and interpretation of\n treaties, and kindred subjects are examined.\n\n In the Third Book, the question is asked, \"What is lawful war?\"\n which prepares for the consideration of military conventions and the\n methods by which peace is to be secured.\n\nFrom the authority of the Empire and the Church, no longer effectual as\nan international agency, Grotius appeals to Humanity as furnishing the\ntrue law of nations. Beginning with the idea that there is a kinship\namong men established by nature, he sees in this bond a community\nof rights. The society of nations, including as it does the whole\nhuman race, needs the recognition of rights as much as mere local\ncommunities. As nations are but larger aggregations of individuals,\neach with its own corporate coherence, the accidents of geographic\nboundary do not obliterate that human demand for justice which springs\nfrom the nature of man as a moral being. There is, therefore, as a\nfundamental bond of human societies a Natural Law, which, when properly\napprehended, is perceived to be the expression and dictate of right\nreason. It is thus upon the nature of man as a rational intelligence\nthat Grotius founds his system of universal law.\n\nAs this law of human nature is universally binding wherever men exist,\nit cannot be set aside by the mere circumstances of time and place,\nwhence it results that there is a law of war as well as a law of peace.\nAs this law applies to the commencement of armed conflicts, war is\nnever to be undertaken except to assert rights, and when undertaken\nis never to be carried on except within the limits of rights. It is\ntrue that in the conflict of arms laws must be silent, but only CIVIL\nlaws, which govern in times of peace. Those laws which are PERPETUAL,\nwhich spring from the nature of man as man, and not from his particular\ncivil relations, continue even during strife and constitute the laws of\nwar. To deny these, or to disobey them, implies a repudiation of human\nnature itself and of the divine authority which has invested it with\nrights and obligations. To disavow the imperative character of these\nperpetual laws, is to revert to barbarism.\n\nIt is necessary, however to distinguish between Natural Law, that\nprinciple of justice which springs from man's rational nature, and\nConventional Law, which results from his agreements and compacts.\nNatural Law remains ever the same, but institutions change. While the\nstudy of abstract justice, apart from all that has its origin in the\nwill or consent of men, would enable us to create a complete system of\njurisprudence, there is another source which must not be neglected,\nsince men have established the sanctity of certain rules of conduct by\nsolemn convention.\n\nThe Law of Nations does not consist, therefore, of a mere body of\ndeductions derived from general principles of justice, for there is\nalso a body of doctrine based upon CONSENT; and it is this system of\nvoluntarily recognized obligations which distinguishes international\njurisprudence from mere ethical speculation or moral theory. There are\nCUSTOMS of nations as well as a universally accepted law of nature, and\nit is in this growth of practically recognized rules of procedure that\nwe trace the evolution of law international--_jus inter gentes_--as a\nbody of positive jurisprudence.\n\nIt is evident that the mind of Grotius is continually struggling to\nestablish a science upon this positive basis, and it is this which\ngives a distinctive character to his effort. The great writers of all\nages are cited with a superfluous lavishness, not so much to support\nhis claims by an aggregation of individual opinions--still less to\ndisplay his erudition, as his critics have sometimes complained--as to\ngive a historic catholicity to his doctrine by showing that the laws\nhe is endeavoring to formulate have, in fact, been accepted in all\ntimes and by all men. For this purpose also, he makes abundant use of\nthe great authorities on Roman Law, whose doctrines and formulas were\ncertain to carry conviction to the minds of those whom he desired to\nconvince.\n\nIt is needless, perhaps, to point out that the work of Grotius is\nnot and could not be a work of permanent authority as a digest of\ninternational law. His own wise appreciation of the positive and\nhistorical element--the authority derived from custom--should exempt\nhim from the pretense of absolute finality. It is the Book of Genesis\nonly that he has given us, but it is his indefeasible distinction to\nhave recorded the creation of order out of chaos in the great sphere of\ninternational relationship, justly entitling him to the honor accorded\nto him by the spontaneous consent of future times as the Father of\nInternational Jurisprudence.\n\nIt is not difficult after more than three centuries of thought and\nexperience to point out the defects in his doctrine. If he justifies\nslavery, it is not without ingenuity; for, he argues, if a man may sell\nhis labor, why not his liberty? and if the conqueror may impose his\nwill upon the property of the vanquished, why not also upon his person?\nIf he identifies sovereignty with supreme power without any adequate\nconception of its ethical basis, he is at least as advanced in his\nthinking as the conceptions of his time, which had not yet grasped the\nidea of the state as a moral organism. If he has no adequate notion\nof neutrality, believing it to be the duty of a nation to enlist its\nenergies for what it deems the right side, rather than to disavow all\nresponsibility for actions foreign to its own interests, he is at least\nsupported in this by the opinion of the multitude even at the present\ntime; and even among jurists the modern conception of neutrality is\nhardly a century old. If the new schools of jurisprudence make light\nof Natural Law as a foundation of public and private rights, it is\nnot certain that Grotius may not yet be vindicated as representing a\ndoctrine at least as clear as any other which has been substituted for\nit. But, finally, to all these criticisms it may be answered, that\nno great thinker can be justly estimated except in relation to his\npredecessors and contemporaries. Measured by these, Grotius stands\nalone among the jurists of his century for originality of thought and\npower of exposition.\n\n\nV. THE INFLUENCE OF GROTIUS'S WORK.\n\nIt was during his sojourn in Hamburg in 1633, eight years after the\npublication of his \"_De Jure_,\" and while he was still suffering from\npainful pecuniary embarrassment, that Europe suddenly awoke to a sense\nof his importance; and, almost at one time, Poland, Denmark, Spain,\nEngland, and Sweden all extended friendly invitations urging him to\nenter into their public service. His fame as a jurist had become\ninternational and, rudely repelled by his native Holland, he became\nthe center of European interest. Gustavus Adolphus had placed the work\nof Grotius along side his Bible under his soldier's pillow, as he\nprosecuted his campaigns in the Thirty Years' War. The first edition\nof that work, written in Latin, the cosmopolitan language of learned\nEurope, had been quickly exhausted and widely scattered. Another had\nsoon been called for at Paris, but the death of Buon, the publisher,\ncreated obstacles to its appearance. A second edition had appeared at\nFrankfort in 1626, another at Amsterdam in 1631, and still another\nwith notes by the author in 1632. The book had aroused the thought of\nkings as well as of scholars, and in the circles of high influence\neverywhere in Europe the name of Grotius had become well known. His\nbook had excited the most opposite sentiments and awakened the most\ncontradictory judgments, but among lawyers and statesmen its reception\nwas from the first generally marked by admiration. In spite of exile,\npoverty, and misfortune, Grotius had become a European celebrity and\nwas about to enter into the reward of his labors. He had created a code\nfor war and a programme of peace, and henceforth no statesman could\nafford to neglect him.\n\nGustavus Adolphus, the king of Sweden, before his death on the\nbattlefield of L\u00fctzen, had commended Grotius to his great Chancellor,\nOxenstiern. By the death of Gustavus the Chancellor had, in 1633,\nrecently come into the regency of the kingdom at a critical moment\nwhen a retreat from the bitter contest with the Empire seemed to be\nforedoomed unless prevented by the support and friendship of France.\nRecalling the commendation of the late king, Oxenstiern sought\nand found in Grotius an ambassador of Sweden to negotiate a new\nFranco-Swedish alliance. Accepting this appointment in 1634, Grotius\narrived at Paris on his diplomatic mission on March 2d, 1635.\n\nRichelieu, having failed to draw the great jurist into the orbit of his\ninfluence as a satellite, resented his appearance in a character so\ninfluential and honorable as that of ambassador of Sweden, and Grotius\nmade little progress in his negotiation. Preoccupied with literature,\nhe took more interest in the composition of a sacred tragedy on \"The\nFlight into Egypt\" than in reminding France of the existing treaty\nof Heilbronn or consolidating the new Franco-Swedish alliance. Where\nGrotius the theorist failed, Oxenstiern, the practical statesman, by\na few dexterous strokes of diplomacy during a brief visit to Paris,\neasily succeeded; and the ambassador's mission was simplified to the\nr\u00f4le of a mere observer and reporter of occurrences.\n\nBy taste, nature, and training, Grotius was a jurist and not a\ndiplomatist, and he soon realized that the two vocations, if not\ndiametrically opposed, are at least separated from each other by a vast\ninterval. His diplomatic correspondence betrays the keen observer and\nthe conscientious moralist rather than the accomplished negotiator.\nAmong the observations recorded in his dispatches, one may be quoted as\nan example of his penetration and his humor. Speaking of the Dauphin,\nthe future Louis XIV, he says: \"His frightful and precocious avidity is\na bad omen for neighboring peoples; for he is at present on his ninth\nnurse, whom he is rending and murdering as he has the others!\"\n\nIt is painful to behold the great father of international jurisprudence\ndescending in his dispatches to petty details of precedence and\nalienating from himself the sympathies of his colleagues by ridiculous\nceremonial pretensions. He would no longer visit Mazarin, because\nthe Cardinal insisted on calling him EMINENCE instead of EXCELLENCE;\nGrotius considering this distinction of terms a slight upon his rank as\nambassador. So persistent was he in these follies and so rancorous were\nthe feuds that the apostle of peace elicited that, in December, 1636,\nless than two years after his arrival at Paris, he advised Sweden to\nsend to France a simple _Charg\u00e9 d'Affaires_, instead of an ambassador,\nin order to restore diplomatic relations.\n\nHis quarrels concerning precedence, which rendered him an object\nof ridicule at the French Court, were not the only griefs of the\nambassador of Sweden. Inadequately recompensed, he was obliged to wait\ntwo years for his salary and finally, being reduced to a condition\nin which he could no longer maintain existence otherwise, he was\ncompelled to demand of the royal treasury of France a part of the\nsubsidies promised to the army of his adopted country. Weary of his\nimportunities, the French government repeatedly requested his recall.\nDisgusted with his mission, Grotius at last abandoned the duties of his\noffice to the intriguing adventurer, Cerisante, who was sent to aid\nhim, and buried himself in his books until his return to Sweden at his\nown request in 1645.\n\nQueen Christina of Sweden, a patroness of scholars, desirous of aiding\nGrotius and of retaining him in the service of her kingdom, made many\noffers and promises, but their execution being deferred, he became\nimpatient of his lot, refused a position as counselor of state, and\nresolved to leave the country. His plan to abandon Stockholm secretly\nwas prevented by a messenger of the queen who followed him to the port\nwhere he intended to embark and induced him to return for a farewell\naudience. With a handsome present of money and silver plate he took\npassage on a vessel placed at his disposition to convey him to L\u00fcbeck.\nOff the coast near Dantzic a violent tempest arose. On the 17th of\nAugust, 1645, the vessel was driven ashore and Grotius, overcome by his\ntrying experiences, was taken ill at Rostock, where a few days later he\npassed away.\n\nThe later years of his life had been chiefly devoted to plans for the\nestablishment of peace in the religious world, whose dissensions gave\nhim great distress of mind.\n\nThe country of his birth, which had so long denied him citizenship,\nreceived him at last to the silent hospitality of the tomb. His body\nwas taken to Delft, his native town, where his name is now held in\ngrateful reverence.\n\nAt the time when Grotius left Stockholm, the last of the\nplenipotentiaries had arrived at M\u00fcnster and Osnabr\u00fcck to attend the\ngreat European congress convoked to terminate the hostilities of the\nThirty Years' War. It is a tradition, but incapable of satisfactory\nproof, that it was with the purpose of being present at the councils\nof this congress that the author of \"_De Jure Belli ac Pacis_\" left\nSweden for Germany. However this may be, it is certain that the\nmediation of the king of Denmark at Osnabr\u00fcck and of the papal legate\nat M\u00fcnster, though unsuccessful, was in accordance with the idea of\nGrotius expressed in the words: \"It would be useful, and indeed it\nis almost necessary, that certain congresses of Christian powers\nshould be held, in which controversies that have arisen among some of\nthem may be decided by others who are not interested.\" The immediate\nestablishment of an international tribunal, evidently contemplated in\nthis suggestion, was not in harmony with the temper of those times;\nbut it cannot be doubted that the Peace of Westphalia, whose treaties\nwere to form a code of public law for Europe, was to a great degree an\nembodiment of the principles which Grotius was the first to enunciate.\n\nHis \"_De Jure Belli ac Pacis_\" had already become a classic even before\nthe author's death, and special professorships were soon founded in\nthe universities to expound its principles. It would be tedious to\nname the numerous editions, translations, and commentaries which have\ngiven it an exceptional place in the literature of Europe. This task\nhas been in part performed, however, by Dr. Rogge in his \"_Bibliotheca\nGrotiana_,\" published at The Hague in 1883, and intended to be a full\nbibliography of Grotius's works. The whole number of titles included\nis 462, but they do not comprise the writings of the generations of\njurists who have been inspired by the great master or of the critics\nand biographers who have discussed his life and work.\n\nTardily, but with full contrition for the bitter wrong done to one of\nher greatest and noblest sons, the memory of Grotius has received from\nhis native land abundant recognition and commemoration. The appropriate\ntomb that marks his resting place in the Nieuwe Kerk at Delft,\nsymbolical of his learning, genius, and renown, was erected in 1781.\nOn the 17th of September, 1886, a noble statue of the great jurist was\nunveiled in the public square of his native town in front of the church\nwhich contains his tomb. Thus, more than a century after his death,\nand again still another century later, Holland has paid her tribute of\nrespect to her illustrious citizen.\n\nThe later years have also brought new honors to Grotius's feet. At\nthe recent Peace Conference at The Hague was completed the great\nstructure of international comity whose corner stone was laid by him\nin 1625. It was most fitting that an international congress called in\nthe interest of peace should blend with the negotiation of conventions\nfor the pacific settlement of disputes between nations by a permanent\ntribunal, and for the amelioration of the laws of war, a celebration\nof the distinguished writer whose great thought had at last borne\nsuch precious fruits. In pursuance of instructions received from\nthe Secretary of State, the United States Commission invited their\ncolleagues in the congress, the heads of the Dutch universities, and\nthe high civic authorities to join with them in observing the 4th of\nJuly by celebrating the memory of the great jurist. With appropriate\nexercises in the apse of the old church, near the monument of Grotius\nand mausoleum of William the Silent, the representatives of twenty-six\nnations gathered to do him honor. A beautiful commemorative wreath of\nsilver was laid upon Grotius's tomb bearing the inscription:\n\n TO\n THE MEMORY OF HUGO GROTIUS\n IN\n REVERENCE AND GRATITUDE\n FROM THE UNITED STATES OF AMERICA\n ON THE\n OCCASION OF THE INTERNATIONAL PEACE CONFERENCE\n AT\n THE HAGUE JULY 4TH, 1899.\n\nAn eloquent oration by the Honorable Andrew D. White, Ambassador of the\nUnited States to Germany, and the head of the Commission, followed by\nother appropriate addresses, recalled the debt of mankind to the author\nof \"_De Jure Belli ac Pacis_\"; and thus the plenipotentiaries of the\nnineteenth century did homage to the exile of the sixteenth who had\ntaught the world that even in the shock and storm of battle humanity\ncannot escape the dominion of its own essential laws, and that even\nindependent states are answerable before the bar of human nature for\nobedience to principles imposed by a Power higher than the prerogatives\nof princes or the will of nations.\n\n David J. Hill\n\n\n\n\nTHE RIGHTS OF WAR AND PEACE, INCLUDING THE LAW OF NATURE AND OF NATIONS.\n\n\n\n\nBOOK I.\n\n\n\n\nCHAPTER I.\n\n Of War--Definition of War--Right, of Governors and of the governed,\n and of equals--Right as a Quality divided into Faculty and\n Fitness--Faculty denoting Power, Property, and Credit--Divided into\n Private and Superior--Right as a Rule, natural and voluntary--Law\n of Nature divided--Proofs of the Law of Nature--Division of Rights\n into human and divine--Human explained--Divine stated--Mosaic Law\n not binding upon Christians.\n\n\nI. The disputes arising among those who are held together by no\ncommon bond of civil laws to decide their dissensions, like the\nancient Patriarchs, who formed no national community, or the numerous,\nunconnected communities, whether under the direction of individuals, or\nkings, or persons invested with Sovereign power, as the leading men in\nan aristocracy, and the body of the people in a republican government;\nthe disputes, arising among any of these, all bear a relation to the\ncircumstances of war or peace. But because war is undertaken for the\nsake of peace, and there is no dispute, which may not give rise to\nwar, it will be proper to treat all such quarrels, as commonly happen,\nbetween nations, as an article in the rights of war: and then war\nitself will lead us to peace, as to its proper end.\n\nII. In treating of the rights of war, the first point, that we have\nto consider, is, what is war, which is the subject of our inquiry,\nand what is the right, which we seek to establish. Cicero styled war a\ncontention by force. But the practice has prevailed to indicate by that\nname, not an immediate action, but a state of affairs; so that war is\nthe state of contending parties, considered as such. This definition,\nby its general extent, comprises those wars of every description,\nthat will form the subject of the present treatise. Nor are single\ncombats excluded from this definition. For, as they are in reality more\nancient than public wars, and undoubtedly, of the same nature, they may\ntherefore properly be comprehended under one and the same name. This\nagrees very well with the true derivation of the word. For the Latin\nword, _Bellum_, WAR, comes from the old word, _Duellum_, a DUEL, as\n_Bonus_ from _Duonus_, and _Bis_ from _Duis_. Now _Duellum_ was derived\nfrom _Duo_; and thereby implied a difference between two persons, in\nthe same sense as we term peace, UNITY, from _Unitas_, for a contrary\nreason. So the Greek word, \u03c0\u03bf\u03bb\u03b5\u03bc\u03bf\u03c2 {polemos} commonly used to signify\nwar, expresses in its original, an idea of multitude. The ancient\nGreeks likewise called it \u03bb\u03c5\u03b7 {ly\u00ea}, which imports a DISUNION of\nminds; just as by the term \u03b4\u03c5\u03b7 {dy\u00ea}, they meant the DISSOLUTION of the\nparts of the body. Nor does the use of the word, WAR, contradict this\nlarger acceptation of it. For though some times it is only applied to\nthe quarrels of states, yet that is no objection, as it is evident that\na general name is often applied to some particular object, entitled to\npeculiar distinction. Justice is not included in the definition of war,\nbecause the very point to be decided is, whether any war is just, and\nwhat war may be so called. Therefore we must make a distinction between\nwar itself, and the justice of it.\n\nIII. As the Rights of War is the title, by which this treatise is\ndistinguished, the first inquiry, as it has been already observed, is\nwhether any war be just, and, in the next place, what constitutes the\njustice of that war. For, in this place, right signifies nothing more\nthan what is just, and that, more in a negative than a positive sense;\nso that RIGHT is that, which is not unjust. Now any thing is unjust,\nwhich is repugnant to the nature of society, established among rational\ncreatures. Thus for instance, to deprive another of what belongs to\nhim, merely for one's own advantage, is repugnant to the law of nature,\nas Cicero observes in the fifth Chapter of his third book of offices;\nand, by way of proof, he says that, if the practice were general, all\nsociety and intercourse among men must be overturned. Florentinus, the\nLawyer, maintains that is impious for one man to form designs against\nanother, as nature has established a degree of kindred amongst us. On\nthis subject, Seneca remarks that, as all the members of the human body\nagree among themselves, because the preservation of each conduces to\nthe welfare of the whole, so men should forbear from mutual injuries,\nas they were born for society, which cannot subsist unless all the\nparts of it are defended by mutual forbearance and good will. But as\nthere is one kind of social tie founded upon an equality, for instance,\namong brothers, citizens, friends, allies, and another on pre-eminence\nas Aristotle styles it, subsisting between parents and children,\nmasters and servants, sovereigns and subjects, God and men. So justice\ntakes place either amongst equals, or between the governing and the\ngoverned parties, notwithstanding their difference of rank. The former\nof these, if I am not mistaken, may be called the right of equality,\nand the latter the right of superiority.\n\nIV. There is another signification of the word RIGHT, different from\nthis, but yet arising from it, which relates directly to the person.\nIn which sense, RIGHT is a moral quality annexed to the person, justly\nentitling him to possess some particular privilege, or to perform\nsome particular act. This right is annexed to the person, although\nit sometimes follows the things, as the services of lands, which are\ncalled REAL RIGHTS, in opposition to those merely PERSONAL. Not because\nthese rights are not annexed to persons, but the distinction is made,\nbecause they belong to the persons only who possess some particular\nthings. This moral quality, when perfect is called a FACULTY; when\nimperfect, an APTITUDE. The former answers to the ACT, and the latter\nto the POWER, when we speak of natural things.\n\nV. Civilians call a faculty that Right, which every man has to his\nown; but we shall hereafter, taking it in its strict and proper sense,\ncall it a right. This right comprehends the power, that we have over\nourselves, which is called liberty, and the power, that we have over\nothers, as that of a father over his children, and of a master over\nhis slaves. It likewise comprehends property, which is either complete\nor imperfect; of the latter kind is the use or possession of any thing\nwithout the property, or power of alienating it, or pledges detained\nby the creditors till payment be made. There is a third signification,\nwhich implies the power of demanding what is due, to which the\nobligation upon the party indebted, to discharge what is owing,\ncorresponds.\n\nVI. Right, strictly taken, is again twofold, the one, PRIVATE,\nestablished for the advantage of each individual, the other, SUPERIOR,\nas involving the claims, which the state has upon individuals, and\ntheir property, for the public good. Thus the Regal authority is above\nthat of a father and a master, and the Sovereign has a greater right\nover the property of his subjects, where the public good is concerned,\nthan the owners themselves have. And when the exigencies of the state\nrequire a supply, every man is more obliged to contribute towards it,\nthan to satisfy his creditors.\n\nVII. Aristotle distinguishes aptitude or capacity, by the name of worth\nor merit, and Michael of Ephesus, gives the epithet of SUITABLE or\nBECOMING to the equality established by this rule of merit.\n\nIX.[1] There is also a third signification of the word Right, which\nhas the same meaning as Law taken in its most extensive sense, to\ndenote a rule of moral action, obliging us to do what is proper. We\nsay OBLIGING us. For the best counsels or precepts, if they lay us\nunder no obligation to obey them, cannot come under the denomination\nof law or right. Now as to permission,[2] it is no act of the law,\nbut only the silence of the law, it however prohibits any one from\nimpeding another in doing what the law permits. But we have said, the\nlaw obliges us to do what is proper, not simply what is just; because,\nunder this notion, right belongs to the substance not only of justice,\nas we have explained it, but of all other virtues. Yet from giving the\nname of a RIGHT to that, which is PROPER, a more general acceptation\nof the word justice has been derived. The best division of right, in\nthis general meaning, is to be found in Aristotle, who, defining one\nkind to be natural, and the other voluntary, calls it a LAWFUL RIGHT\nin the strictest sense of the word law; and some times an instituted\nright. The same difference is found among the Hebrews, who, by way of\ndistinction, in speaking, call that natural right, PRECEPTS, and the\nvoluntary right, STATUTES: the former of which the Septuagint call\n\u03b4\u03b9\u03ba\u03b1\u03b9\u03ce\u03bc\u03b1\u03c4\u03b1 {dikai\u00f4mata}, and the latter \u1f10\u03bd\u03c4\u03bf\u03bb\u03b1\u03c2 {entolas}.\n\nX. Natural right is the dictate of right reason, shewing the moral\nturpitude, or moral necessity,[3] of any act from its agreement or\ndisagreement with a rational nature, and consequently that such an\nact is either forbidden or commanded by God, the author of nature.\nThe actions, upon which such a dictate is given, are either binding\nor unlawful in themselves, and therefore necessarily understood to be\ncommanded or forbidden by God. This mark distinguishes natural right,\nnot only from human law, but from the law, which God himself has been\npleased to reveal, called, by some, the voluntary divine right, which\ndoes not command or forbid things in themselves either binding or\nunlawful, but makes them unlawful by its prohibition, and binding by\nits command. But, to understand natural right, we must observe that\nsome things are said to belong to that right, not properly, but, as\nthe schoolmen say, by way of accommodation. These are not repugnant to\nnatural right, as we have already observed that those things are called\nJUST, in which there is no injustice. Some times also, by a wrong use\nof the word, those things which reason shews to be proper, or better\nthan things of an opposite kind, although not binding, are said to\nbelong to natural right.\n\nWe must farther remark, that natural right relates not only to those\nthings that exist independent of the human will, but to many things\nwhich necessarily follow the exercise of that will. Thus property,\nas now in use, was at first a creature of the human will. But, after\nit was established, one man was prohibited by the law of nature from\nseizing the property of another against his will. Wherefore, Paulus the\nLawyer said, that theft is expressly forbidden by the law of nature.\nUlpian condemns it as infamous in its own nature; to whose authority\nthat of Euripides may be added, as may be seen in the verses of Helena:\n\n\"For God himself hates violence, and will not have us to grow rich by\nrapine, but by lawful gains. That abundance, which is the fruit of\nunrighteousness, is an abomination. The air is common to men, the earth\nalso, where every man, in the ample enjoyment of his possession, must\nrefrain from doing violence or injury to that of another.\"\n\nNow the Law of Nature is so unalterable, that it cannot be changed even\nby God himself. For although the power of God is infinite, yet there\nare some things, to which it does not extend. Because the things so\nexpressed would have no true meaning, but imply a contradiction. Thus\ntwo and two must make four, nor is it possible to be otherwise; nor,\nagain, can what is really evil not be evil. And this is Aristotle's\nmeaning, when he says, that some things are no sooner named, than we\ndiscover their evil nature. For as the substance of things in their\nnature and existence depends upon nothing but themselves; so there\nare qualities inseparably connected with their being and essence. Of\nthis kind is the evil of certain actions, compared with the nature of\na reasonable being. Therefore God himself suffers his actions to be\njudged by this rule, as may be seen in the xviiith chap. of Gen. 25.\nIsa. v. 3. Ezek. xviii. 25. Jer. ii. 9. Mich. vi. 2. Rom. ii. 6., iii.\n6. Yet it sometimes happens that, in those cases, which are decided by\nthe law of nature, the undiscerning are imposed upon by an appearance\nof change. Whereas in reality there is no change in the unalterable\nlaw of nature, but only in the things appointed by it, and which are\nliable to variation. For example, if a creditor forgive me the debt,\nwhich I owe him, I am no longer bound to pay it, not because the law of\nnature has ceased to command the payment of a just debt, but because my\ndebt, by a release, has ceased to be a debt. On this topic, Arrian in\nEpictetus argues rightly, that the borrowing of money is not the only\nrequisite to make a debt, but there must be the additional circumstance\nof the loan remaining undischarged. Thus if God should command the\nlife, or property of any one to be taken away, the act would not\nauthorise murder or robbery, words which always include a crime. But\nthat cannot be murder or robbery, which is done by the express command\nof Him, who is the sovereign Lord of our lives and of all things. There\nare also some things allowed by the law of nature, not absolutely, but\naccording to a certain state of affairs. Thus, by the law of nature,\nbefore property was introduced, every one had a right to the use of\nwhatever he found unoccupied; and, before laws were enacted, to avenge\nhis personal injuries by force.\n\nXI. The distinction found in the books of the Roman Law, assigning\none unchangeable right to brutes in common with man, which in a more\nlimited sense they call the law of nature, and appropriating another to\nmen, which they frequently call the Law of Nations, is scarcely of any\nreal use. For no beings, except those that can form general maxims, are\ncapable of possessing a right, which Hesiod has placed in a clear point\nof view, observing \"that the supreme Being has appointed laws for men;\nbut permitted wild beasts, fishes, and birds to devour each other for\nfood.\" For they have nothing like justice, the best gift, bestowed upon\nmen.\n\nCicero, in his first book of offices, says we do not talk of the\njustice of horses or lions. In conformity to which, Plutarch, in the\nlife of Cato the elder, observes, that we are formed by nature to use\nlaw and justice towards men only. In addition to the above, Lactantius\nmay be cited, who, in his fifth book, says that in all animals devoid\nof reason we see a natural bias of self-love. For they hurt others\nto benefit themselves; because they do not know the evil of doing\nwilful hurt. But it is not so with man, who, possessing the knowledge\nof good and evil, refrains, even with inconvenience to himself,\nfrom doing hurt. Polybius, relating the manner in which men first\nentered into society, concludes, that the injuries done to parents or\nbenefactors inevitably provoke the indignation of mankind, giving an\nadditional reason, that as understanding and reflection form the great\ndifference between men and other animals, it is evident they cannot\ntransgress the bounds of that difference like other animals, without\nexciting universal abhorrence of their conduct. But if ever justice is\nattributed to brutes, it is done improperly, from some shadow and trace\nof reason they may possess. But it is not material to the nature of\nright, whether the actions appointed by the law of nature, such as the\ncare of our offspring, are common to us with other animals or not, or,\nlike the worship of God, are peculiar to man.\n\nXII. The existence of the Law of Nature is proved by two kinds of\nargument, _a priori_, and _a posteriori_, the former a more abstruse,\nand the latter a more popular method of proof. We are said to reason _a\npriori_, when we show the agreement or disagreement of any thing with a\nreasonable and social nature; but _a posteriori_, when without absolute\nproof, but only upon probability, any thing is inferred to accord with\nthe law of nature, because it is received as such among all, or at\nleast the more civilized nations. For a general effect can only arise\nfrom a general cause. Now scarce any other cause can be assigned for so\ngeneral an opinion, but the common sense, as it is called, of mankind.\nThere is a sentence of Hesiod that has been much praised, that opinions\nwhich have prevailed amongst many nations, must have some foundation.\nHeraclitus, establishing common reason as the best criterion of truth,\nsays, those things are certain which generally appear so. Among other\nauthorities, we may quote Aristotle, who says it is a strong proof\nin our favour, when all appear to agree with what we say, and Cicero\nmaintains that the consent of all nations in any case is to be admitted\nfor the law of nature. Seneca is of the same opinion, any thing, says\nhe, appearing the same to all men is a proof of its truth. Quintilian\nsays, we hold those things to be true, in which all men agree. We have\ncalled them the more civilized nations, and not without reason. For,\nas Porphyry well observes, some nations are so strange that no fair\njudgment of human nature can be formed from them, for it would be\nerroneous. Andronicus, the Rhodian says, that with men of a right and\nsound understanding, natural justice is unchangeable. Nor does it alter\nthe case, though men of disordered and perverted minds think otherwise.\nFor he who should deny that honey is sweet, because it appears not so\nto men of a distempered taste, would be wrong. Plutarch too agrees\nentirely with what has been said, as appears from a passage in his life\nof Pompey, affirming that man neither was, nor is, by nature, a wild\nunsociable creature. But it is the corruption of his nature which makes\nhim so: yet by acquiring new habits, by changing his place, and way\nof living, he may be reclaimed to his original gentleness. Aristotle,\ntaking a description of man from his peculiar qualities, makes him\nan animal of a gentle nature, and in another part of his works, he\nobserves, that in considering the nature of man, we are to take our\nlikeness from nature in its pure, and not in its corrupt state.\n\nXIII. It has been already remarked, that there is another kind of\nright, which is the voluntary right, deriving its origin from the will,\nand is either human or divine.\n\nXIV. We will begin with the human as more generally known. Now this\nis either a civil right, or a right more or less extensive than the\ncivil right. The civil right is that which is derived from the civil\npower. The civil power is the sovereign power of the state. A state is\na perfect body of free men, united together in order to enjoy common\nrights and advantages. The less extensive right, and not derived\nfrom the civil power itself, although subject to it, is various,\ncomprehending the authority of parents over children, masters over\nservants, and the like. But the law of nations is a more extensive\nright, deriving its authority from the consent of all, or at least of\nmany nations.\n\nIt was proper to add MANY, because scarce any right can be found common\nto all nations, except the law of nature, which itself too is generally\ncalled the law of nations. Nay, frequently in one part of the world,\nthat is held for the law of nations, which is not so in another. Now\nthis law of nations is proved in the same manner as the unwritten civil\nlaw, and that is by the continual experience and testimony of the Sages\nof the Law. For this law, as Dio Chrysostom well observes, is the\ndiscoveries made by experience and time. And in this we derive great\nadvantage from the writings of eminent historians.\n\nXV. The very meaning of the words divine voluntary right, shows that it\nsprings from the divine will, by which it is distinguished from natural\nlaw, which, it has already been observed, is called divine also. This\nlaw admits of what Anaxarchus said, as Plutarch relates in the life of\nAlexander, though without sufficient accuracy, that God does not will\na thing, because it is just, but that it is just, or binding, because\nGod wills it. Now this law was given either to mankind in general, or\nto one particular people. We find three periods, at which it was given\nby God to the human race, the first of which was immediately after the\ncreation of man, the second upon the restoration of mankind after the\nflood, and the third upon that more glorious restoration through Jesus\nChrist. These three laws undoubtedly bind all men, as soon as they come\nto a sufficient knowledge of them.\n\nXVI. Of all nations there is but one, to which God particularly\nvouchsafed to give laws; and that was the people of Israel, whom Moses\nthus addresses in the fourth Chap. of Deuteronomy, ver. 7. \"What\nnation is there so great who hath God so nigh unto them, as the Lord\nour God is in all things that we call upon him for? And what nation\nis there so great, who have statutes and judgments so righteous, as\nall this law, which I set before you this day!\" And the Psalmist in\nthe cxlvii. Psalm, \"God shewed his word unto Jacob, his statutes and\nordinances unto Israel. He hath not dealt so with any nation, and as\nfor his judgments they have not known them.\" Nor can we doubt but that\nthose Jews, with whom we may class Tryphon in his dispute with Justin,\nare mistaken, who suppose that even strangers, if they wish to be\nsaved, must submit to the yoke of the Mosaic Law. For a law does not\nbind those, to whom it has not been given. But it speaks personally\nto those, who are immediately under it. Hear O Israel, and we read\neverywhere of the covenant made with them, by which they became the\npeculiar people of God. Maimonides acknowledges and proves the truth of\nthis from the xxxiii. Chapter and fourth verse of Deuteronomy.\n\nBut among the Hebrews themselves there were always living some\nstrangers, persons devout and fearing God, such was the Syrophoenician\nwoman, mentioned in the Gospel of St. Matthew, xv. 22. Cornelius the\nCenturion. Acts. x. the devout Greeks, Acts xviii. 6. Sojourners, or\nstrangers, also are mentioned. Levit. xxv. 47. These, as the Hebrew\nRabbis themselves inform us, were obliged to observe the laws given\nto Adam and Noah, to abstain from idols and blood, and other things,\nthat were prohibited; but not in the same manner to observe the laws\npeculiar to the people of Israel. Therefore though the Israelites\nwere not allowed to eat the flesh of a beast, that had died a natural\ndeath; yet the strangers living among them were permitted. Deut. xiv.\n21. Except in some particular laws, where it was expressly said,\nthat strangers no less than the native inhabitants were obliged to\nobserve them. Strangers also, who came from other countries, and were\nnot subject to the Jewish laws, might worship God in the temple of\nJerusalem, but standing in a place separate and distinct from the\nIsraelites. I. Kings viii. 41. 2 Mac. iii. 35. John xii. 20. Acts viii.\n27. Nor did Elisha ever signify to Naaman the Syrian, nor Jonas to the\nNinevites, nor Daniel to Nebuchadnezzar, nor the other Prophets to the\nTyrians, the Moabites, the Egyptians, to whom they wrote, that it was\nnecessary for them to adopt the Mosaic Law.\n\nWhat has been said of the whole law of Moses applies to circumcision,\nwhich was a kind of introduction to the law. Yet with this difference\nthat the Israelites alone were bound by the Mosaic Law, but the\nwhole posterity of Abraham by the law of circumcision. From hence\nwe are informed by Jewish and Greek Historians, that the Idumaeans,\nor Edomites were compelled by the Jews to be circumcised. Wherefore\nthere is reason to believe that the numerous nations, who, besides the\nIsraelites, practised circumcision, and who are mentioned by Herodotus,\nStrabo, Philo, Justin, Origen, Clemens, Alexandrinus, Epiphanius,\nand Jerom, were descended from Ishmael, Esau, or the posterity of\nKeturah. But what St. Paul says, Rom. ii. 14. holds good of all other\nnations; that the Gentiles, not having the law, yet doing by nature\nthe things contained in the law, become a law to themselves. Here the\nword nature may be taken for the primitive source of moral obligation;\nor, referring it to the preceding parts of the Epistle, it may signify\nthe knowledge, which the Gentiles acquired of themselves without\ninstruction, in opposition to the knowledge derived to the Jews from\nthe law, which was instilled into them from their cradle, and almost\nfrom their birth. \"So the Gentiles show the work, or the moral precepts\nof the law, written in their hearts, their consciences also bearing\nwitness, and their thoughts the mean while accusing or else excusing\none another.\" And again in the 26th ver.; \"If the uncircumcision\nkeep the righteousness of the law, shall not his uncircumcision be\ncounted for circumcision?\" Therefore Ananias, the Jew, as we find in\nthe history of Josephus, very properly taught Tzates, or as Tacitus\ncalls him, Ezates, the Adiabenian, that even without circumcision,\nGod might be rightly worshipped and rendered propitious. For though\nmany strangers were circumcised, among the Jews, and by circumcision\nbound themselves to observe the law, as St. Paul explains it in Gal.\nv. 3.; they did it partly to obtain the freedom of the country; for\nproselytes called by the Hebrews, proselytes of righteousness, enjoyed\nequal privileges with the Israelites. Num. xv.: and partly to obtain a\nshare in those promises, which were not common to mankind, but peculiar\nto the Jewish people, although it cannot be denied, that in later\nages an erroneous opinion prevailed, that there was no salvation out\nof the Jewish pale. Hence we may infer, that we are bound by no part\nof the Levitical law, strictly and properly so called; because any\nobligation, beyond that arising from the law of nature, must proceed\nfrom the express will of the law-giver. Now it cannot be discovered\nby any proof, that God intended any other people, but the Israelites\nto be bound by that law. Therefore with respect to ourselves, we have\nno occasion to prove an abrogation of that law; for it could never\nbe abrogated with respect to those, whom it never bound. But the\nIsraelites were released from the ceremonial part, as soon as the law\nof the Gospel was proclaimed; a clear revelation of which was made to\none of the Apostles, Acts x. 15. And the other parts of the Mosaic law\nlost their peculiar distinction, when the Jews ceased to be a people\nby the desolation and destruction of their city without any hopes of\nrestoration. Indeed it was not a release from the law of Moses that\nwe, who were strangers to the Commonwealth of Israel, obtained by the\ncoming of Christ. But as before that time, our hopes in the goodness of\nGod were obscure and uncertain, we gained the assurance of an express\ncovenant, that we should be united in one Church with the seed of\nIsrael, the children of the patriarchs, their law, that was the wall of\nseparation between us, being broken down. Eph. ii. 14.\n\nXVII. Since then the law given by Moses imposes no direct obligation\nupon us, as it has been already shown, let us consider whether it\nhas any other use both in this inquiry into the rights of war, and\nin other questions of the same kind. In the first place, the Mosaic\nlaw shows that what it enjoins is not contrary to the law of nature.\nFor since the law of nature is perpetual and unchangeable, nothing\ncontradictory to it could be commanded by God, who is never unjust.\nBesides the law of Moses is called in the xix. Psalm an undefiled\nand right law, and St. Paul, Rom. vii. 12, describes it to be holy,\njust, and good. Its precepts are here spoken of, for its permissions\nrequire a more distinct discussion. For the bare permission, signifying\nthe removal of an impediment, or prohibition, has no relation to the\npresent subject. A positive, legal permission is either full, granting\nus power to do some particular act without the least restriction,\nor less full, only allowing men impunity for certain actions, and a\nright to do them without molestation from others. From the permission\nof the former kind no less than from a positive precept, it follows\nthat what the law allows, is not contrary to the law of nature.[4]\nBut with regard to the latter kind of permission, allowing impunity\nfor certain acts, but not expressly authorizing them, we cannot so\nreadily conclude those acts to be conformable to the law of nature.[5]\nBecause where the words of permission are ambiguous in their meaning,\nit is better for us to interpret according to the established law of\nnature, what kind of permission it is, than from our conception of its\nexpediency to conclude it conformable to the laws of nature. Connected\nwith this first observation there is another, expressive of the power\nthat obtains among Christian Princes to enact laws of the same import\nwith those given by Moses, except such as related entirely to the time\nof the expected Messiah, and the Gospel then unrevealed, or where\nChrist himself has in a general or particular manner established any\nthing to the contrary. For except in these three cases, no reason can\nbe devised, why any thing established by the law of Moses should be\nnow unlawful. In the third place it may be observed, that whatever\nthe law of Moses enjoined relating to those virtues, which Christ\nrequired of his disciples, should be fulfilled by Christians now, in\na greater degree, from their superior knowledge, and higher motives.\nThus the virtues of humility, patience, and charity are required of\nChristians in a more perfect manner than of the Jews under the Mosaic\ndispensation, because the promises of heaven are more clearly laid\nbefore us in the Gospel. Hence the old law, when compared with the\nGospel, is said to have been neither perfect nor faultless, and Christ\nis said to be the end of the law, and the law our schoolmaster to bring\nus to Christ. Thus the old law respecting the Sabbath, and the law\nrespecting tithes, show that Christians are bound to devote not less\nthan a seventh portion of their time to divine worship, nor less than\na tenth of their fruits to maintain those who are employed in holy\nthings, or to other pious uses.\n\n\n\n\nCHAPTER II.\n\nINQUIRY INTO THE LAWFULNESS OF WAR.\n\n Reasons proving the lawfulness of War--Proofs from History--Proofs\n from general consent--The Law of Nature proved not repugnant to\n War--War not condemned by the voluntary Divine Law preceding the\n Gospel--Objections answered--Review of the question whether War be\n contrary to the Law of the Gospel--Arguments from Scripture for the\n negative Opinions--Answer to the Arguments taken from Scripture for\n the affirmative--The opinions of the primitive Christians on the\n subject examined.\n\n\nI. After examining the sources of right, the first and most general\nquestion that occurs, is whether any war is just, or if it is ever\nlawful to make war. But this question like many others that follow,\nmust in the first place be compared with the rights of nature. Cicero\nin the third book of his Bounds of Good and Evil, and in other parts of\nhis works, proves with great erudition from the writings of the Stoics,\nthat there are certain first principles of nature, called by the Greeks\nthe first natural impressions, which are succeeded by other principles\nof obligation superior even to the first impressions themselves. He\ncalls the care, which every animal, from the moment of its birth, feels\nfor itself and the preservation of its condition, its abhorrence of\ndestruction, and of every thing that threatens death, a principle of\nnature. Hence, he says, it happens, that if left to his own choice,\nevery man would prefer a sound and perfect to a mutilated and deformed\nbody. So that preserving ourselves in a natural state, and holding to\nevery thing conformable, and averting every thing repugnant to nature\nis the first duty.\n\nBut from the knowledge of these principles, a notion arises of their\nbeing agreeable to reason, that part of a man, which is superior\nto the body. Now that agreement with reason, which is the basis of\npropriety, should have more weight than the impulse of appetite;\nbecause the principles of nature recommend right reason as a rule that\nought to be of higher value than bare instinct. As the truth of this\nis easily assented to by all men of sound judgment without any other\ndemonstration, it follows that in inquiring into the laws of nature\nthe first object of consideration is, what is agreeable to those\nprinciples of nature, and then we come to the rules, which, though\narising only out of the former, are of higher dignity, and not only to\nbe embraced, when offered, but pursued by all the means in our power.\n\nThis last principle, which is called propriety, from its fitness,\naccording to the various things on which it turns, sometimes is limited\nto a very narrow point, the least departure from which is a deviation\ninto vice; sometimes it allows a wider scope, so that some actions,\neven laudable in themselves, may be omitted or varied without crime.\nIn this case there is not an immediate distinction between right and\nwrong; the shades are gradual, and their termination unperceived; not\nlike a direct contrast, where the opposition is immediately seen, and\nthe first step is a transgression of the fixed bounds.\n\nThe general object of divine and human laws is to give the authority\nof obligation to what was only laudable in itself. It has been said\nabove that an investigation of the laws of nature implies an inquiry,\nwhether any particular action may be done without injustice: now by\nan act of injustice is understood that, which necessarily has in it\nany thing repugnant to the nature of a reasonable and social being. So\nfar from any thing in the principles of nature being repugnant to war,\nevery part of them indeed rather favours it. For the preservation of\nour lives and persons, which is the end of war, and the possession or\nacquirement of things necessary and useful to life is most suitable to\nthose principles of nature, and to use force, if necessary, for those\noccasions, is no way dissonant to the principles of nature, since all\nanimals are endowed with natural strength, sufficient to assist and\ndefend themselves.\n\nXenophon says, that every animal knows a certain method of fighting\nwithout any other instructor than nature. In a fragment of Ovid's,\ncalled the Art of Fishery, it is remarked, that all animals know their\nenemy and his means of defence, and the strength and measure of their\nown weapons. Horace has said, \"the wolf attacks with its teeth, the\nbull with its horns, and whence is this knowledge derived but from\ninstinct?\" On this subject Lucretius enlarges, observing that \"every\ncreature knows its own powers. The calf butts with its forehead,\nbefore its horns appear, and strikes with all imaginable fury.\" On\nwhich Galen expresses himself in the following manner, \"every animal\nappears to defend itself with that part of its body, in which it excels\nothers. The calf butts with its head before its horns have grown, and\nthe colt strikes with its heel before its hoofs are hard, as the young\ndog attempts to bite before his teeth are strong.\" The same writer in\ndescribing the use of different parts of the body, says, \"that man is\na creature formed for peace and war. His armour forms not an immediate\npart of his body; but he has hands fit for preparing and handling arms,\nand we see infants using them spontaneously, without being taught to\ndo so.\" Aristotle in the 4th book, and tenth chapter of the history of\nanimals, says, \"that the hand serves man for a spear, a sword, or any\narms whatever, because it can hold and wield them.\" Now right reason\nand the nature of society which claims the second, and indeed more\nimportant place in this inquiry, prohibit not all force, but only that\nwhich is repugnant to society, by depriving another of his right. For\nthe end of society is to form a common and united aid to preserve to\nevery one his own. Which may easily be understood to have obtained,\nbefore what is now called property was introduced. For the free use of\nlife and limbs was so much the right of every one, that it could not\nbe infringed or attacked without injustice. So the use of the common\nproductions of nature was the right of the first occupier, and for any\none to rob him of that was manifest injustice. This may be more easily\nunderstood, since law and custom have established property under its\npresent form. Tully has expressed this in the third book of his Offices\nin the following words, \"if every member could have separate feeling,\nand imagine it could derive vigour from engrossing the strength of\na neighboring part of the body, the whole frame would languish and\nperish. In the same manner if every one of us, for his own advantage,\nmight rob another of what he pleased, there would be a total overthrow\nof human society and intercourse. For though it is allowed by nature\nfor every one to give the preference to himself before another in\nthe enjoyment of life and necessaries, yet she does not permit us to\nincrease our means and riches by the spoils of others.\" It is not\ntherefore contrary to the nature of society to provide and consult for\nourselves, if another's right is not injured; the force therefore,\nwhich inviolably abstains from touching the rights of others, is not\nunjust. For as the same Cicero observes some where in his Epistles,\nthat as there are two modes of contending, the one by argument, and the\nother by force, and as the former is peculiar to man, and the latter\ncommon to him with the brute creation, we must have recourse to the\nlatter, when it is impossible to use the former. And again, what can be\nopposed to force, but force? Ulpian observes that Cassius says, it is\nlawful to repel force by force, and it is a right apparently provided\nby nature to repel arms with arms, with whom Ovid agrees, observing\nthat the laws permit us to take up arms against those that bear them.\n\nII. The observation that all war is not repugnant to the law of nature,\nmay be more amply proved from sacred history. For when Abraham with his\nservants and confederates had gained a victory, by force of arms, over\nthe four Kings, who had plundered Sodom, God approved of his act by\nthe mouth of his priest Melchisedech, who said to him, \"Blessed be the\nmost high God, who hath delivered thine enemies into thine hand.\" Gen.\nxiv. 20. Now Abraham had taken up arms, as appears from the history,\nwithout any special command from God. But this man, no less eminent for\nsanctity than wisdom, felt himself authorized by the law of nature,\nas it is admitted by the evidence of Berosus, and Orpheus, who were\nstrangers.\n\nThere is no occasion to appeal to the history of the seven nations,\nwhom God delivered up into the hands of the Israelites to be destroyed.\nFor there was a special command to execute the judgment of God upon\nnations guilty of the greatest crimes. From whence these wars are\nliterally styled in scripture, Battles of the Lord, as undertaken, not\nby human will, but by divine appointment. The xvii. chapter of Exodus\nsupplies a passage more to the purpose, relating the overthrow which\nthe Israelites, conducted by Moses and Joshua, made of the Amalekites.\nIn this act, there was no express commission from God, but only an\napproval after it was done. But in the xix. chap. of Deut. ver. 10,\n15. God has prescribed general and standing laws to his people on\nthe manner of making war, by this circumstance shewing that a war\nmay be just without any express commandment from him. Because in the\nsame passage, a plain distinction is made between the case of the\nseven nations and that of others. And as there is no special edict\nprescribing the just causes for which war may be undertaken, the\ndetermination of them is left to the discovery of natural reason. Of\nthis kind is the war of Jephthah against the Ammonites, in defence of\ntheir borders. Jud. xi. and the war of David against the same people\nfor having violated the rights of his Ambassadors. 2 Sam. x. To the\npreceding observations may be added, what the inspired writer of the\nEpistle to the Hebrews says of Gideon, Barack, Sampson, Jephthah,\nDavid, Samuel, and others, who by faith made war upon kingdoms,\nprevailed in war and put whole armies of their enemies to flight. Heb.\nxi. 33, 34. The whole tenor of this passage shews, that the word faith\nimplies a persuasion, that what they did was believed to be agreeable\nto the will of God. In the same manner, David is said, by a woman\ndistinguished for her wisdom, 1 Sam. xxv. 28. to fight the battles of\nthe Lord, that is to make lawful and just wars.\n\nIII. Proofs of what has been advanced, may be drawn also from the\nconsent of all, especially, of the wisest nations. There is a\ncelebrated passage in Cicero's speech for Milo, in which, justifying\nrecourse to force in defence of life, he bears ample testimony to the\nfeelings of nature, who has given us this law, which is not written,\nbut innate, which we have not received by instruction, hearing or\nreading, but the elements of it have been engraven in our hearts\nand minds with her own hand: a law which is not the effect of habit\nand acquirement, but forms a part in the original complexion of our\nframe: so that if our lives are threatened with assassination or open\nviolence from the hands of robbers or enemies, ANY means of defence\nwould be allowed and laudable. He proceeds, reason has taught this to\nthe learned, necessity to the barbarians, custom to nations, and nature\nherself to wild beasts, to use every possible means of repelling force\noffered to their bodies, their limbs and their lives. Caius and Lawyer\nsays, natural reason permits us to defend ourselves against dangers.\nAnd Florentinus, another legal authority, maintains, that whatever any\none does in defence of his person ought to be esteemed right. Josephus\nobserves, that the love of life is a law of nature strongly implanted\nin all creatures, and therefore we look upon those as enemies, who\nwould openly deprive us of it.\n\nThis principle is founded on reasons of equity, so evident, that\neven in the brute creation, who have no idea of right, we make a\ndistinction between attack and defence. For when Ulpian had said,\nthat an animal without knowledge, that is without the use of reason,\ncould not possibly do wrong, he immediately adds, that when two animals\nfight, if one kills the other, the distinction of Quintius Mutius\nmust be admitted, that if the aggressor were killed no damages could\nbe recovered; but if the other, which was attacked, an action might\nbe maintained. There is a passage in Pliny, which will serve for an\nexplanation of this, he says that the fiercest lions do not fight with\neach other, nor do serpents bite serpents. But if any violence is done\nto the tamest of them, they are roused, and upon receiving any hurt,\nwill defend themselves with the greatest alacrity and vigour.\n\nIV. From the law of nature then which may also be called the law of\nnations, it is evident that all kinds of war are not to be condemned.\nIn the same manner, all history and the laws of manners of every people\nsufficiently inform us, that war is not condemned by the voluntary law\nof nations. Indeed Hermogenianus has said, that wars were introduced\nby the law of nations, a passage which ought to be explained somewhat\ndifferently from the general interpretation given to it. The meaning of\nit is, that certain formalities, attending war, were introduced by the\nlaw of nations, which formalities were necessary to secure the peculiar\nprivileges arising out of the law. From hence a distinction, which\nthere will be occasion to use hereafter, between a war with the usual\nformalities of the law of nations, which is called just or perfect, and\nan informal war, which does not for that reason cease to be just, or\nagreeable to right. For some wars, when made upon just grounds, though\nnot exactly conformable, yet are not repugnant to the law, as will be\nexplained more fully hereafter. By the law of the nations, says Livy,\nprovision is made to repel force by arms; and Florentinus declares,\nthat the law of nations allows us to repel violence and injury, in\norder to protect our persons.\n\nV. A greater difficulty occurs respecting the divine voluntary law.\nNor is there any force in the objection that as the law of nature is\nunchangeable, nothing can be appointed even by God himself contrary\nto it. For this is true only in those things, which the law of nature\npositively forbids or commands; not in those which are tacitly\npermitted by the same law. For acts of that kind, not falling strictly\nwithin the general rule, but being exceptions to the law of nature,\nmay be either forbidden or commanded. The first objection usually made\nagainst the lawfulness of war is taken from the law given to Noah\nand his posterity, Gen. ix. 5, 6, where God thus speaks, \"Surely the\nblood of your lives will I require; at the hand of every beast will I\nrequire it, and at the hand of every man; at the hand of every man's\nbrother will I require the life of man. Whoever sheds man's blood, by\nman shall his blood be shed; for in the image of God made he man.\" Here\nsome take the phrase of requiring blood, in the most general sense, and\nthe other part, that blood shall be shed in its turn, they consider as\na bare threat, and not an approbation; neither of which acceptations\ncan be admitted. For the prohibition of shedding blood extends not\nbeyond the law itself, which declares, THOU SHALT NOT KILL; but passes\nno condemnation upon capital punishments or wars undertaken by public\nauthority.\n\nNeither the law of Moses, nor that given to Noah established any thing\nnew, they were only a declaratory repetition of the law of nature, that\nhad been obliterated by depraved custom. So that the shedding of blood\nin a criminal and wanton manner is the only act prohibited by those\ncommandments. Thus every act of homicide does not amount to murder, but\nonly that, which is committed with a wilful and malicious intention to\ndestroy the life of an innocent person. As to what follows about blood\nbeing shed in return for blood, it seems to imply not a mere act of\npersonal revenge, but the deliberate exercise of a perfect right, which\nmay be thus explained; it is not unjust, according to the principles\nof nature that any one should suffer in proportion to the evil he has\ndone, conformably to the judicial maxim of Rhadamanthus, that if any\none himself suffers what he has done, it is but just and right. The\nsame opinion is thus expressed by Seneca the father; \"it is but a just\nretaliation for any one to suffer in his own person the evil which\nhe intended to inflict upon another.\" From a sense of this natural\njustice, Cain knowing himself guilty of his brother's blood said,\n\"whosoever finds me shall kill me.\"\n\nBut as in those early times, when men were few, and aggressions rare,\nthere was less occasion for examples, God restrained by an express\ncommandment the impulse of nature which appeared lawful, he forbad any\none to kill the murderer, at the same time prohibiting all intercourse\nwith him, even so far as not to touch him.[6]\n\nPlato has established this in his laws, and the same rule prevailed\nin Greece, as appears from the following passage in Euripides, \"our\nfathers of old did well in banishing from their intercourse and sight\nany one that had shed another's blood; imposing banishment by way of\natonement, rather than inflicting death.\" We find Thucydides of the\nsame opinion, \"that anciently lighter punishments were inflicted for\nthe greatest crimes; but in process of time, as those penalties came\nto be despised, legislators were obliged to have recourse to death\nin certain cases.\" We may add to the above instances the remark of\nLactantius, that as yet it appeared a sin to punish even the most\nwicked men with death.\n\nThe conjecture of the divine will taken from the remarkable instance\nof Cain, whom no one was permitted to kill passed into a law, so that\nLanech, having perpetrated a similar deed, promised himself impunity\nfrom this example.--Gen. iv. 24.\n\nBut as before the deluge, in the time of the Giants, the practice of\nfrequent and wanton murders had prevailed; upon the renewal of the\nhuman race, after the deluge, that the same evil custom might not be\nestablished, God thought proper to restrain it by severer means. The\nlenity of former ages was laid aside, and the divine authority gave\na sanction to the precepts of natural justice, that whoever killed a\nmurderer should be innocent. After tribunals were erected, the power\nover life was, for the very best reasons, conferred upon the judges\nalone. Still some traces of ancient manners remained in the right which\nwas granted, after the introduction of the Mosaic Law, to the nearest\nin blood to the person killed.\n\nThis interpretation is justified by the authority of Abraham, who, with\na perfect knowledge of the law given to Noah, took arms against the\nfour Kings, fully persuaded that he was doing nothing in violation of\nthat law. In the same manner Moses ordered the people to fight against\nAmalekites, who attacked them; following in this case the dictates\nof nature, for he appears to have had no special communication with\nGod. Exod. xvii. 9. Besides, we find that capital punishments were\ninflicted upon other criminals, as well as murderers, not only among\nthe Gentiles, but among those who had been impressed with the most\npious rules and opinions, even the Patriarchs themselves. Gen. xxxviii.\n24.\n\nIndeed upon comparing the divine will with the light of nature, it was\nconcluded, that it seemed conformable to justice, that other crimes\nof great enormity should be subject to the same punishment as that\nof murder. For there are some rights, such as those of reputation,\nchastity, conjugal fidelity, submission of subjects to their princes,\nall of which are esteemed of equal value with life itself, because on\nthe preservation of these the peace and comfort of life depend. The\nviolation of any of those rights is little less than murder itself.\n\nHere may be applied the old tradition found among the Jews, that there\nwere many laws, which were not ALL mentioned by Moses, given by God\nto the sons of Noah; as it was sufficient for his purpose, that they\nshould afterwards be comprehended in the peculiar laws of the Hebrews.\nThus it appears from xviii. chap. of Leviticus, that there was an\nancient law against incestuous marriages, though not mentioned by Moses\nin its proper place. Now among the commandments given by God to the\nchildren of Noah, it is said, that death was expressly declared to\nbe the punishment not only for murder, but for adultery, incest, and\nrobbery, which is confirmed by the words of Job xxxi. 11. The law of\nMoses too, for the sanction of capital punishments, gives reasons which\noperate no less with other nations, than with the Jewish people. Levit.\nxviii. 25-30. Psa. ci. 5. Prov. xx. 8. And particularly respecting\nmurder it is said, the land cannot be cleansed unless the blood of the\nmurderer be shed. Numb. xxv. 31-33. Besides, it were absurd to suppose\nthat the Jewish people were indulged with the privilege of maintaining\nthe public safety, and that of individuals by capital punishments, and\nasserting their rights by war, and that other kings and nations were\nnot allowed the same powers. Nor do we find that those kings or nations\nwere forewarned by the Prophets, that the use of capital punishments,\nand that all wars, were condemned by God in the same manner as they\nwere admonished of all other sins. On the other hand, can any one\ndoubt, as the law of Moses bore such an express image of the divine\nwill respecting criminal justice, whether other nations would not have\nacted wisely in adopting it for their example? It is certain that the\nGreeks, and the Athenians in particular did so. From hence came the\nclose resemblance which the Jewish bore to the old Athenian law, and\nto that of the twelve tables of Rome. Enough has been said, to shew\nthat the law given to Noah cannot bear the interpretation of those, who\nderive from it their arguments against the lawfulness of all war.\n\nVI. The arguments against the lawfulness of war, drawn from the Gospel,\nare more specious. In examining which it will not be necessary to\nassume, as many do, that the Gospel contains nothing more than the law\nof nature, except the rules of faith and the Sacraments: an assumption,\nwhich in its general acceptation is by no means true. It may readily be\nadmitted, that nothing inconsistent with natural justice is enjoined\nin the gospel, yet it can never be allowed, that the laws of Christ do\nnot impose duties upon us, above those required by the law of nature.\nAnd those, who think otherwise, strain their arguments to prove that\nmany practices forbidden by the gospel, as concubinage, divorce,\npolygamy, were made offences by the law of nature. The light of nature\nmight point out the HONOUR of abstaining from such practices, but the\nSINFULNESS of them could not have been discovered without a revelation\nof the will of God. Who for instance would say, that the Christian\nprecept of laying down our lives for others was an obligation of the\nlaw of nature? 1 John iii. 16. It is said by Justin the Martyr, that to\nlive according to the bare law of nature is not the character of a true\nbeliever. Neither can we follow those, who, adopting another meaning of\nno inconsiderable import, construe the precept delivered by Christ in\nhis sermon on the mount, into nothing more than an interpretation of\nthe Mosaic Law. For the words, \"you have heard it was said to them of\nold, but I say to YOU,\" which are so often repeated, imply something\nelse. Those of old were no other than contemporaries of Moses: for\nwhat is there repeated as said to those of OLD are not the words of\nthe teachers of the law, but of Moses, either LITERALLY, or in THEIR\nmeaning. They are cited by our Saviour as his express words, not as\ninterpretations of them: \"Thou shalt not kill,\" Exod. xx. whoever\nkilleth shall be in danger of Judgment, Levit. xxi. 21. Numb. xxxv. 16,\n17, 30. \"Thou shalt not commit adultery,\" Exod. xx. \"whosoever shall\nput away his wife, let him give her a writing of divorcement.\" Deut.\nxxiv, 1. \"Thou shalt not forswear thyself, but shalt perform unto the\nLord thine oaths.\" Exod. xx. 7. Numb. xxx. 2. \"An eye for an eye, and\na tooth for a tooth,\" may be demanded in justice. Levit. xxxiv. 20.\nDeut. xix. 21. \"Thou shalt love thy neighbour,\" that is, an Israelite.\nLevit. xix. 18. \"and thou shalt hate thine enemy,\" that is, any one\nof the seven nations to whom friendship or compassion was forbidden\nto be shewn. Exod. xxxiv. 11. Deut. vii. 1. To these may be added\nthe Amalekites, with whom the Israelites were commanded to maintain\nirreconcileable war. Exod. xxvii. 19. Deut. xxv. 19.\n\nBut to understand the words of our Saviour, we must observe that the\nlaw of Moses is taken in a double sense, either as containing some\nprinciples in common with human laws, such as imposing restraint upon\nhuman crimes by the dread of exemplary punishments. Heb. ii. 2. And\nin this manner maintaining civil society among the Jewish people:\nfor which reason it is called, Heb. vii. 16, the law of a carnal\ncommandment, and Rom. iii. 17. the law of works: or it may be taken\nin another sense, comprehending the peculiar sanctions of a divine\nlaw, requiring purity of mind, and certain actions, which might be\nomitted without temporal punishments. In this sense it is called a\nspiritual law, giving life to the soul. The teachers of the law, and\nthe Pharisees considering the first part as sufficient, neglected to\ninstruct the people in the second and more important branch, deeming\nit superfluous. The truth of this may be proved, not only from our own\nwritings, but from Josephus also, and the Jewish Rabbis. Respecting\nthis second part we may observe, that the virtues which are required\nof Christians, are either recommended or enjoined to the Hebrews,\nbut not enjoined in the same degree and extent as to Christians. Now\nin both these senses Christ opposes his own precepts to the old law.\nFrom whence it is clear, that his words contain more than a bare\ninterpretation of the Mosaic law. These observations apply not only to\nthe question immediately in hand, but to many others; that we may not\nrest upon the authority of the Mosaic law farther than is right.\n\nVII. Omitting therefore the less satisfactory proofs, as a leading\npoint of evidence to shew that the right of war is not taken away by\nthe law of the gospel, that passage in St. Paul's Epistle to Timothy\nmay be referred to, where the Apostle says, \"I exhort therefore\nthat, first of all, supplications, prayers, intercessions, and giving\nof thanks be made for all men; for Kings, and for all that are in\nauthority, that we may lead a quiet and peaceable life, in all\ngodliness and honesty; for this is good and acceptable in the sight of\nGod our Saviour, who would have all men to be saved, and to come to\nthe knowledge of the truth.\" 1 Eph. ii. 1, 2, 3. From this passage,\nthe following conclusions may be drawn; in the first place, that\nChristian piety in kings is acceptable to God, that their profession\nof Christianity does not abridge their rights of sovereignty. Justin\nthe Martyr has said, \"that in our prayers for Kings, we should beg\nthat they may unite a spirit of wisdom with their royal power,\" and\nin the book called the Constitutions of Clement, the Church prays for\nChristian rulers, and that Christian Princes may perform an acceptable\nservice to God, by securing to other Christians the enjoyment of quiet\nlives. The manner in which the Sovereign secures this important end,\nis explained in another passage from the same Apostle. Rom. xiii. 4.\n\"He is the minister of God to thee for good. But if thou do evil, fear,\nfor he beareth not the sword in vain; for he is the minister of God,\nan avenger to execute wrath upon them, that do evil.\" By the right\nof the sword is understood the exercise of every kind of restraint,\nin the sense adopted by the Lawyers, not only over offenders amongst\nhis own people, but against neighboring nations, who violate his own\nand his people's rights. To clear up this point, we may refer to the\nsecond Psalm, which although it applies literally to David, yet in its\nmore full and perfect sense relates to Christ, which may be seen by\nconsulting other parts of scripture. For instance, Acts iv. 25. xiii.\n33. For that Psalm exhorts all kings to worship the son of God, shewing\nthemselves, as kings, to be his ministers, which may be explained by\nthe words of St. Augustine, who says, \"In this, kings, in their royal\ncapacity, serve God according to the divine commandment, if they\npromote what is good, and prohibit what is evil in their kingdoms, not\nonly relating to human society, but also respecting religion.\" And in\nanother place the same writer says, \"How can kings serve the Lord in\nfear, unless they can prohibit and punish with due severity offences\nagainst the law of God? For the capacities in which they serve God, as\nindividuals, and as kings, are very different. In this respect they\nserve the Lord, as kings, when they promote his service by means which\nthey could not use without regal power.\n\nThe same part of the Apostle's writings supplies us with a second\nargument, where the higher powers, meaning kings, are said to be from\nGod, and are called the ordinance of God; from whence it is plainly\ninferred that we are to honour and obey the king, from motives of\nconscience, and that every one who resists him, is resisting God. If\nthe word ordinance meant nothing more than a bare permission, that\nobedience which the Apostle so strenuously enjoins would only have\nthe force of an imperfect obligation. But as the word ordinance, in\nthe original, implies an express commandment and appointment, and as\nall parts of the revealed will of God are consistent with each other,\nit follows that the obedience of subjects to sovereigns is a duty of\nsupreme obligation. Nor is the argument at all weakened by its being\nsaid, that the Sovereigns at the time when St. Paul wrote, were not\nChristians. For it is not universally true, as Sergius Paulus, the\ndeputy governor of Cyprus, had long before professed the Christian\nreligion. Acts xiii. 12. There is no occasion to mention the tradition\nrespecting Abgarus the King of Edessa's Epistle to our Saviour; a\ntradition mingled with falsehood, though, in some measure founded\nupon truth. For the question did not turn upon the characters of the\nPrinces, whether they were godly or not, but whether THEIR holding the\nkingly office was repugnant to the law of God. This St. Paul denies,\nmaintaining that the kingly office, even under all circumstances, was\nappointed by God, therefore it ought to be honoured from motives of\nconscience, which, properly speaking, are under the controul of God\nalone. So that Nero, and King Agrippa whom Paul so earnestly entreats\nto become a Christian, might have embraced Christianity, and still\nretained, the one his regal, and the other his imperial authority,\nwhich could not be exercised without the power of the sword. As the\nlegal sacrifices might formerly be performed by wicked Priests; in the\nsame manner regal power would retain its indelible sanctity, though in\nthe hands of an ungodly man.\n\nA third argument is derived from the words of John the Baptist, who,\nat a time when many thousands of the Jews served in the Roman armies,\nas appears from the testimony of Josephus and others, being seriously\nasked by the soldiers, what they should do to avoid the wrath of God,\ndid not command them to renounce their military calling, which he ought\nto have done, had it been inconsistent with the law and will of God,\nbut to abstain from violence, extortion, and false accusation, and to\nbe content with their wages. In reply to these words of the Baptist,\nso plainly giving authority to the military profession, many observed\nthat the injunction of the Baptist is so widely different from the\nprecepts of Christ, that HE seemed to preach one doctrine and our LORD\nanother. Which is by no means admissible, for the following reasons.\nBoth our Saviour and the Baptist made repentance the substance of\ntheir doctrine; for the kingdom of heaven was at hand. By the Kingdom\nof Heaven is meant a new law, as the Hebrews used to give the name\nof Kingdom to their law. Christ himself says the Kingdom of Heaven\nbegan to suffer violence from the days of John the Baptist. Matt. xi.\n12. John is said to have preached the baptism of repentance for the\nremission of sins. Mark i. 4. The Apostles are said to have done the\nsame in the name of Christ. Acts xi. 38. John requires fruits worthy\nof repentance, and threatens destruction to those, who do not produce\nthem. Matt. iii. 8, 10. He also requires works of charity above the\nlaw. Luke iii. 2. The law is said to have continued till John, that\nis, a more perfect law is said to have commenced from his instruction.\nHe was called greater than the prophets, and declared to be one sent\nto give the knowledge of salvation to the people by announcing the\ngospel. He makes no distinction between himself and Jesus on the score\nof doctrine, only ascribing pre-eminence to Christ as the promised\nMessiah, the Lord of the Kingdom of Heaven, who would give the power of\nthe holy spirit to those, who believed in him. In short, the dawning\nrudiments of knowledge, which proceeded from the forerunner, were more\ndistinctly unfolded and cleared up, by Christ himself, the light of the\nworld.\n\nThere is a fourth argument, which seems to have no little weight,\nproceeding upon the supposition, that if the right of inflicting\ncapital punishments were abolished, and princes were deprived of the\npower of the sword to protect their subjects against the violence of\nmurderers and robbers, wickedness would triumphantly prevail, and\nthe world would be deluged with crimes, which, even under the best\nestablished governments, are with so much difficulty prevented or\nrestrained. If then it had been the intention of Christ to introduce\nsuch an order of things as had never been heard of, he would\nundoubtedly by the most express and particular words, have condemned\nall capital punishments, and all wars, which we never read that he\ndid. For the arguments, brought in favor of such an opinion, are\nfor the most part very indefinite and obscure. Now both justice and\ncommon sense require such general expressions to be taken in a limited\nacceptation, and allow us, in explaining ambiguous words, to depart\nfrom their literal meaning, where our strictly adhering to it would\nlead to manifest inconvenience and detriment.\n\nThere is a fifth argument, maintaining that no proof can be adduced\nthat the judicial part of the Mosaic Law, inflicting sentence of\ndeath, ever ceased to be in force, till the city of Jerusalem, and\nthe civil polity of the Jews were utterly destroyed, without hopes\nof restoration. For in the Mosaic dispensation no assignable term is\nnamed for the duration of the law; nor do Christ and his Apostles ever\nspeak of its abolition, except in allusion to the overthrow of the\nJewish state. Indeed on the contrary, St. Paul says, that the High\nPriest was appointed to judge according to the law of Moses. Acts xxiv.\n3. And Christ himself, in the introduction to his precepts, declares\nthat he came not to destroy the law, but to fulfil it. Matt. v. 17.\nThe application of his meaning to the ritual law is very plain, for\nit was only the outline and shadow of that perfect body, of which the\nGospel formed the substance. But how is it possible that the judicial\nlaws should stand, if Christ, according to the opinion of some,\nabolished them by his coming? Now if the law remained in force as long\nas the Jewish state continued, it follows that the Jewish converts to\nChristianity if called to the magisterial office, could not refuse it\non the score of declining to pass sentence of death, and that they\ncould not decide otherwise than the law of Moses had prescribed.\n\nUpon weighing the whole matter, the slightest ground cannot be\ndiscovered for supposing that any pious man, who had heard those\nwords from our Saviour himself, would have understood them in a sense\ndifferent from that which has been here given. It must however be\nadmitted that, before the Gospel dispensation permission or impunity\nwas granted to certain acts and dispositions, which it would neither\nbe necessary nor proper to examine at present, upon which Christ did\nnot allow his followers to act. Of this kind was the permission to\nput away a wife for every offence, and to seek redress by law for\nevery injury. Now between the positive precepts of Christ and those\npermissions there is a difference, but not a contradiction. For he\nthat retains his wife, and he that forgoes his right of redress, does\nnothing CONTRARY to the law, but rather acts agreeably to the SPIRIT\nof it. It is very different with a judge, who is not merely permitted,\nbut commanded by the law to punish a murderer with death, incurring\nguilt in the sight of God, if he should act otherwise. If Christ had\nforbidden him to put a murderer to death, his prohibition would have\namounted to a contradiction, and it would have abolished the law.\n\nThe example of Cornelius the Centurion supplies a sixth argument in\nfavor of this opinion. In receiving the holy spirit from Christ, he\nreceived an indubitable proof of his justification; he was baptized\ninto the name of Christ by Peter, yet we do not find that he either\nhad resigned or was advised by the Apostle to resign his military\ncommission. In reply to which some maintain, that when instructed\nby Peter in the nature of the Christian religion, he must have been\ninstructed to form the resolution of quitting his military calling.\nThere would be some weight in their answer, if it could be shown that\nan absolute prohibition of war is to be found among the precepts\nof Christ. And as it can be found nowhere else, it would have been\ninserted in its proper place among the precepts of Christ, that after\nages might not have been ignorant of the rules of duty. Nor as may be\nseen in the xix. chap. of the Acts of the Apostles and the 19th ver.\nis it usual with St. Luke, in cases where the personal character and\nsituation of converts required an extraordinary change of life and\ndisposition, to pass over such a circumstance without notice.\n\nThe seventh argument is like the preceding, and is taken from the\nexample of Sergius Paulus, which has been already mentioned. In the\nhistory of his conversion there is not the least intimation of his\nabdicating the magistracy, or being required to do so. Therefore\nsilence respecting a circumstance, which would naturally and\nnecessarily have been mentioned, may be fairly taken as a proof that\nit never existed. The conduct of St. Paul supplies us with an eighth\nargument on this subject. When he understood that the Jews lay in\nwait for an opportunity to seize and kill him, he immediately gave\ninformation of their design to the commander of the Roman garrison,\nand when the commander gave him a guard of soldiers to protect him on\nhis journey, he made no remonstrance, nor ever hinted either to the\ncommander or the soldiers that it was displeasing to God to repel force\nby force. Yet this is the same Apostle who, as appears from all his\nwritings, 2 Tim. iv. 2. neither himself neglected nor allowed others\nto neglect any opportunity of reminding men of their duty. In addition\nto all that has been said, it may be observed, that the peculiar end\nof what is lawful and binding, must itself be lawful and binding also.\nIt is lawful to pay tribute, and according to St. Paul's explanation,\nit is an act binding upon the conscience, Rom. xiii. 3, 4, 6. For the\nend of tribute is to supply the state with the means of protecting\nthe good, and restraining the wicked. There is a passage in Tacitus\nvery applicable to the present question. It is in the fourth book of\nhis history, in the speech of Petilius Cerealis, who says, \"the peace\nof nations cannot be preserved without armies, nor can armies be\nmaintained without pay, nor pay supplied without taxation.\" There is a\nsentiment similar to this of the historian, in St. Augustin, he says,\n\"for this purpose we pay tribute, that the soldier may be provided with\nthe necessaries of life.\"\n\nThe tenth argument is taken from that part of the xxv. chap. of the\nActs of the Apostles, where Paul says, \"If I have wronged any man, or\ndone any thing worthy of death, I refuse not to die.\" From whence the\nopinion of St. Paul may be gathered, that, even after the publication\nof the gospel, there were certain crimes which justice not only allowed\nbut required to be punished with death; which opinion St. Peter also\nmaintains. But if it had been the will of God that capital punishments\nshould be abolished, Paul might have cleared himself, but he ought not\nto have left an impression on the minds of men, that it was at that\ntime equally lawful as before to punish the guilty with death. Now as\nit has been proved, that the coming of Christ did not take away the\nright of inflicting capital punishments, it has at the same time been\nproved, that war may be made upon a multitude of armed offenders, who\ncan only be brought to justice by defeat in battle. The numbers, the\nstrength and boldness of the aggressors, though they may have their\nweight in restraining our deliberations, cannot in the least diminish\nour right.\n\nThe substance of the eleventh argument rests not only upon our\nSaviour's having abolished those parts of the Mosaic law, which formed\na wall of separation between the Jews and other nations, but upon\nhis allowing the moral parts to remain, as standing rules, approved\nby the law of nature, and the consent of every civilized people, and\ncontaining whatever is good and virtuous.\n\nNow the punishing of crimes, and the taking up arms to avenge or ward\noff injuries are among those actions, which by the law of nature\nrank as laudable, and are referred to the virtues of justice and\nbeneficence. And here is the proper place to animadvert slightly upon\nthe mistake of those, who derive the rights of war, possessed by the\nIsraelites, solely from the circumstance of God having given them the\nland of Canaan and commissioned them to drive out the inhabitants. This\nmay be one just reason, but it is not the sole reason.\n\nFor, prior to those times, holy men guided by the light of nature\nundertook wars, which the Israelites themselves afterwards did for\nvarious reasons, and David in particular, to avenge the violated rights\nof ambassadors. But the rights, which any one derives from the law of\nnature, are no less his own than if God had given them: nor are those\nrights abolished by the law of the Gospel.\n\nVIII. Let us now consider the arguments, by which the contrary opinion\nis supported, that the pious reader may judge more easily, to which\nside the scale inclines.\n\nIn the first place, the prophecy of Isaiah is generally alleged, who\nsays the time shall come, \"when nations shall beat their swords into\nplow-shares, and turn their spears into pruning hooks. Nation shall\nnot lift up sword against nation, neither shall they learn war any\nmore.\" ii. 4. But this prophecy, like many others, is to be taken\nconditionally, alluding to the state of the world that would take\nplace, if all nations would submit to the law of Christ, and make\nit the rule of life, to which purpose God would suffer nothing to\nbe wanting on his part. For it is certain, that if all people were\nChristians, and lived like Christians, there would be no wars, which\nArnobius expresses thus, \"If all men, knowing that it is not their\ncorporeal form alone which makes them men, but the powers of the\nunderstanding, would lend a patient ear to his salutary and pacific\ninstructions, if they would trust to his admonitions rather than to the\nswelling pride and turbulence of their senses, iron would be employed\nfor instruments of more harmless and useful operations, the world enjoy\nthe softest repose and be united in the bands of inviolable treaties.\"\nOn this subject Lactantius, reproaching the Pagans with the deification\nof their conquerors, says, \"what would be the consequence, if all men\nwould unite in concord? Which might certainly be brought to pass,\nif, abandoning ruinous and impious rage, they would live in justice\nand innocence.\" Or this passage of the prophecy must be understood\nliterally, and, if taken in that sense, it shews that it is not yet\nfulfilled, but its accomplishment must be looked for in the general\nconversion of the Jewish people. But, which ever way you take it, no\nconclusion can be drawn from it against the justice of war, as long as\nviolent men exist to disturb the quiet of the lovers of peace.[7]\n\nIX. In examining the meaning of written evidence, general custom, and\nthe opinions of men celebrated for their wisdom have usually great\nweight; a practice which it is right to observe in the interpretation\nof holy scripture. For it is not likely that churches, which had been\nfounded by the Apostles, would either suddenly or universally have\nswerved from those opinions, which the Apostles had briefly expressed,\nin writing, and afterwards more fully and clearly explained to them\nwith their own lips, and reduced to practice. Now certain expressions\nof the primitive Christians are usually alleged by those who are\nadverse to all wars, whose opinions may be considered and refuted in\nthree points of view.\n\nIn the first place, from these expressions nothing more can be gathered\nthan the private opinions of certain individuals, but no public\nopinion of the Churches. Besides these expressions for the most part\nare to be found only in the writings of Origen, Tertullian and some\nfew others, who wished to distinguish themselves by the brilliancy of\ntheir thoughts, without regarding consistency in their opinions. For\nthis same Origen says, that Bees were given by God as a pattern for\nmen to follow in conducting just, regular, and necessary wars; and\nlikewise Tertullian, who in some parts seems to disapprove of capital\npunishments, has said, \"No one can deny that it is good the guilty\nshould be punished.\" He expresses his doubts respecting the military\nprofession, for in his book upon idolatry, he says, it is a fit matter\nof inquiry, whether believers can take up arms, or whether any of\nthe military profession can be admitted as members of the Christian\nChurch. But in his Book entitled, the SOLDIER'S CROWN, after some\nobjections against the profession of arms, he makes a distinction\nbetween those who are engaged in the army before baptism, and those\nwho entered after they had made the baptismal vow. \"It evidently,\n_says he_ alters the case with those who were soldiers before their\nconversion to Christianity; John admitted them to baptism, in one\ninstance Christ approved, and in another Peter instructed a faithful\nCenturion: yet with this stipulation, that they must either like\nmany others, relinquish their calling, or be careful to do nothing\ndispleasing to God.\" He was sensible then that they continued in the\nmilitary profession after baptism, which they would by no means have\ndone, if they had understood that all war was forbidden by Christ. They\nwould have followed the example of the Soothsayers, the Magi, and other\nprofessors of forbidden arts, who ceased to practice them, when they\nbecame Christians. In the book quoted above, commending a soldier, who\nwas at the same time a Christian, he says, \"O Soldier glorious in God.\"\n\nThe second observation applies to the case of those, who declined or\neven refused bearing arms, on account of the circumstances of the\ntimes, which would have required them to do many acts inconsistent with\ntheir Christian calling. In Dolabella's letter to the Ephesians, which\nis to be found in Josephus, we see that the Jews requested an exemption\nfrom military expeditions, because, in mingling with strangers, they\ncould not conveniently have observed the rites of their own laws and\nwould have been obliged to bear arms, and to make long marches on the\nSabbaths. And we are informed by Josephus that, for the same reasons,\nthe Jews obtained their discharge of L. Lentulus. In another part, he\nrelates that when the Jews had been ordered to leave the city of Rome,\nsome of them enlisted in the army, and that others, who out of respect\nto the laws of their country, for the reasons before mentioned, refused\nto bear arms, were punished. In addition to these a third reason may\nbe given, which was that they would have to fight against their own\npeople, against whom it was unlawful to bear arms, especially when they\nincurred danger and enmity for adhering to the Mosaic law. But the\nJews, whenever they could do it, without these inconveniences, served\nunder foreign princes, previously stipulating, as we are informed by\nJosephus, for liberty to live according to the laws and rules of their\nown country. Tertullian objects to the military service of his own\ntimes on account of dangers, and inconveniences very similar to those,\nwhich deterred the Jews. In his book on Idolatry, he says, \"it is\nimpossible to reconcile the oath of fidelity to serve under the banners\nof Christ, with that to serve under the banners of the Devil.\" Because\nthe soldiers were ordered to swear by Jupiter, Mars, and the other\nHeathen Gods. And in his book on the Soldier's Crown, he asks, \"if the\nsoldier be to keep watch before the temples, which he has renounced, to\nsup where he is forbidden by the Apostle, and to guard in the night the\nGods, whom he has abjured in the day?\" And he proceeds with asking, \"if\nthere be not many other military duties, which ought to be regarded in\nthe light of sins?\"\n\nThe third point of view, in which the subject is to be considered,\nrelates to the conduct of those primitive Christians, who, in the\nardour of zeal, aimed at the most brilliant attainments, taking the\ndivine counsels for precepts of obligation. The Christians, says\nAthenagoras, never go to law with those, who rob them.\n\nSalvian says, it was commanded by Christ that we should relinquish\nthe object of dispute, rather than engage in law suits. But this,\ntaken in so general an acceptation, is rather by the way of counsel,\nin order to attain to a sublimer mode of life, than intended as a\npositive precept. Thus many of the primitive Fathers condemned all\noaths without exception, yet St. Paul, in matters of great importance,\nmade use of these solemn appeals to God. A Christian in Tatian said,\n\"I refuse the office of Praetor,\" and in the words of Tertullian, \"a\nChristian is not ambitious of the Aedile's office.\" In the same manner\nLactantius maintains that a just man, such as he wishes a Christian\nto be, ought not to engage in war, nor, as all his wants can be\nsupplied at home, even to go to sea. How many of the primitive fathers\ndissuade Christians from second marriages? All these counsels are good,\nrecommending excellent attainments, highly acceptable to God, yet they\nare not required of us, by any absolute law. The observations already\nmade are sufficient to answer the objections derived from the primitive\ntimes of Christianity.\n\nNow in order to confirm our opinions, we may observe that they have\nthe support of writers, even of greater antiquity, who think that\ncapital punishments may be inflicted, and that wars, which rest upon\nthe same authority, may be lawfully engaged in by Christians. Clemens\nAlexandrinus says, that \"a Christian, if, like Moses, he be called to\nthe exercise of sovereign power, will be a living law to his subjects,\nrewarding the good, and punishing the wicked.\" And, in another place,\ndescribing the habit of a Christian, he says, \"it would become him to\ngo barefoot, unless he were a soldier.\" In the work usually entitled\nthe CONSTITUTIONS OF CLEMENS ROMANUS, we find that \"it is not all\nkilling which is considered unlawful, but only that of the innocent;\nyet the administration of judicial punishments must be reserved to the\nsupreme power alone.\" But without resting upon individual authorities,\nwe can appeal to the public authority of the church which ought to\nhave the greatest weight. From hence it is evident that none were ever\nrefused baptism, or excommunicated by the church, merely for bearing\narms, which they ought to have been, had the military profession been\nrepugnant to the terms of the new covenant. In the CONSTITUTIONS just\nquoted, the writer speaking of those who, in the primitive times,\nwere admitted to baptism, or refused that ordinance, says, \"let a\nsoldier who desires to be admitted be taught to forbear from violence,\nand false accusations, and to be content with his regular pay. If he\npromises obedience let him be admitted.\" Tertullian in his Apology,\nspeaking in the character of Christians, says, \"We sail along with you,\nand we engage in the same wars,\" having a little before observed, \"we\nare but strangers, yet we have filled all your cities, your islands,\nyour castles, your municipal towns, your councils, and even your\ncamps.\" He had related in the same book that rain had been obtained\nfor the Emperor Marcus Aurelius by the prayers of the Christian\nsoldiers.[8] In his book of the crown, he commends a soldier, who had\nthrown away his garland, for a courage superior to that of his brethren\nin arms, and informs us that he had many Christian fellow soldiers.\n\nTo these proofs may be added the honours of Martyrdom given by the\nChurch to some soldiers, who had been cruelly persecuted, and had even\nsuffered death for the sake of Christ, among whom are recorded three of\nSt. Paul's companions, Cerialis who suffered martyrdom under Decius;\nMarinus under Valerian; fifty under Aurelian, Victor, Maurus, and\nValentinus, a lieutenant general under Maximian. About the same time\nMarcellus the Centurion, Severian under Licinius. Cyprian, in speaking\nof Laurentinus, and Ignatius, both Africans, says, \"They too served in\nthe armies of earthly princes, yet they were truly spiritual soldiers\nof God, defeating the wiles of the Devil by a steady confession of the\nname of Christ, and earning the palms and crowns of the Lord by their\nsufferings.\" And from hence it is plain what was the general opinion\nof the primitive Christians upon war, even before the Emperors became\nChristians.\n\nIt need not be thought surprising, if the Christians of those times\nwere unwilling to appear at trials for life, since, for the most\npart, the persons to be tried were Christians. In other respects too,\nbesides being unwilling to witness the unmerited sufferings of their\npersecuted brethren, the Roman laws were more severe than Christian\nlenity could allow of, as may be seen from the single instance of the\nSilanian decree of the Senate.[9] Indeed capital punishments were not\nabolished even after Constantine embraced and began to encourage the\nChristian religion. He himself among other laws enacted one similar to\nthat of the ancient Romans, for punishing parricides, by sewing them\nin a sack with certain animals, and throwing them into the sea, or the\nnearest river. This law is to be found in his code under the \"title of\nthe murders of parents or children.\" Yet in other respects he was so\ngentle in punishing criminals, that he is blamed by many historians\nfor his excessive lenity. Constantine, we are informed by historians,\nhad at that time many Christians in his army, and he used the name\nof Christ as the motto upon his standards. From that time too the\nmilitary oath was changed to the form, which is found in Vegetius, and\nthe soldier swore, \"By God, and Christ, and the holy spirit, and the\nmajesty of the Emperor, to whom as next to God, homage and reverence\nare due from mankind.\" Nor out of so many Bishops at that time, many\nof whom suffered the most cruel treatment for their religion, do we\nread of a single one, who dissuaded Constantine, by the terrors of\ndivine wrath from inflicting capital punishments, or prosecuting wars,\nor who deterred the Christians, for the same reasons, from serving\nin the armies. Though most of those Bishops were strict observers\nof discipline, who would by no means dissemble in points relating\nto the duty of the Emperors or of others. Among this class, in the\ntime of Theodosius, we may rank Ambrose, who in his seventh discourse\nsays, \"there is nothing wrong in bearing arms; but to bear arms from\nmotives of rapine is a sin indeed,\" and in his first book of Offices,\nhe maintains the same opinion, that \"the courage which defends one's\ncountry against the incursions of barbarians, or protects one's family\nand home from the attacks of robbers, is complete justice.\" These\narguments so decidedly shew the opinions of the primitive Christians\nin the support of just and necessary war, that the subject requires no\nfarther proof or elucidation.\n\nNor is the argument invalidated by a fact pretty generally known, that\nBishops and other Christians often interceded in behalf of criminals,\nto mitigate the punishment of death, and that any, who had taken\nrefuge in churches, were not given up, but upon the promise of their\nlives being spared. A custom was introduced likewise of releasing\nall prisoners about the time of Easter. But all these instances, if\ncarefully examined, will be found the voluntary acts of Christian\nkindness, embracing every opportunity to do good, and not a settled\npoint of public opinion condemning all capital punishments. Therefore\nthose favours were not universal; but limited to times and places,\nand even the intercessions themselves were modified with certain\nexceptions.[10]\n\n\n\n\nCHAPTER III.\n\nTHE DIVISION OF WAR INTO PUBLIC AND PRIVATE AND THE NATURE OF SOVEREIGN\nPOWER.\n\n The Division of War into public and private--Examples to prove\n that all private War is not repugnant to the Law of Nature since\n the erection of Courts of Justice--The Division of Public War\n into formal, and informal--Whether the suppression of Tumults by\n subordinate Magistrates be properly public War--Civil Power, in\n what it consists--Sovereign Power further considered--The opinion\n of those, who maintain that the Sovereign Power is always in the\n people, refuted, and their arguments answered--Mutual subjection\n refuted--Cautions requisite to understand the nature of Sovereign\n Power--Distinction of the real differences that exist under similar\n names--Distinction between the right to Sovereign Power, and the\n mode of exercising it.\n\n\nI. The first and most necessary divisions of war are into one kind\ncalled private, another public, and another mixed. Now public war is\ncarried on by the person holding the sovereign power. Private war is\nthat which is carried on by private persons without authority from the\nstate. A mixed war is that which is carried on, on one side by public\nauthority, and on the other by private persons. But private war, from\nits greater antiquity, is the first subject for inquiry.\n\nThe proofs that have been already produced, to shew that to repel\nviolence is not repugnant to natural law, afford a satisfactory reason\nto justify private war, as far as the law of nature is concerned.\nBut perhaps it may be thought that since public tribunals have been\nerected, private redress of wrongs is not allowable. An objection which\nis very just. Yet although public trials and courts of justice are\nnot institutions of nature, but erected by the invention of men, yet\nas it is much more conducive to the peace of society for a matter in\ndispute to be decided by a disinterested person, than by the partiality\nand prejudice of the party aggrieved, natural justice and reason will\ndictate the necessity and advantage of every one's submitting to the\nequitable decisions of public judges. Paulus, the Lawyer, observes that\n\"what can be done by a magistrate with the authority of the state,\nshould never be intrusted to individuals; as private redress would give\nrise to greater disturbance. And \"the reason, _says King Theodoric_,\nwhy laws were invented, was to prevent any one from using personal\nviolence, for wherein would peace differ from all the confusion of war,\nif private disputes were terminated by force?\" And the law calls it\nforce for any man to seize what he thinks his due, without seeking a\nlegal remedy.\n\nII. It is a matter beyond all doubt that the liberty of private\nredress, which once existed, was greatly abridged after courts of\njustice were established. Yet there may be cases, in which private\nredress must be allowed, as for instance, if the way to legal justice\nwere not open. For when the law prohibits any one from redressing his\nown wrongs, it can only be understood to apply to circumstances where\na legal remedy exists. Now the obstruction in the way to legal redress\nmay be either temporary or absolute. Temporary, where it is impossible\nfor the injured party to wait for a legal remedy, without imminent\ndanger and even destruction. As for instance, if a man were attacked in\nthe night, or in a secret place where no assistance could be procured.\nAbsolute, either as the right, or the fact may require. Now there are\nmany situations, where the right must cease from the impossibility of\nsupporting it in a legal way, as in unoccupied places, on the seas,\nin a wilderness, or desert island, or any other place, where there\nis no civil government. All legal remedy too ceases by fact, when\nsubjects will not submit to the judge, or if he refuses openly to take\ncognizance of matters in dispute. The assertion that all private war\nis not made repugnant to the law of nature by the erection of legal\ntribunals, may be understood from law given to the Jews, wherein God\nthus speaks by the mouth of Moses, Exod. xxii. 2. \"If a thief be found\nbreaking up, that is, by night, and be smitten that he dies, there\nshall no blood be shed for him, but if the sun be risen upon him,\nthere shall be blood shed for him.\" Now this law, making so accurate a\ndistinction in the merits of the case, seems not only to imply impunity\nfor killing any one, in self-defence, but to explain a natural right,\nfounded not on any special divine command, but on the common principles\nof justice. From whence other nations have plainly followed the same\nrule. The passage of the twelve tables is well known, undoubtedly taken\nfrom the old Athenian Law, \"If a thief commit a robbery in the night,\nand a man kill him, he is killed lawfully.\" Thus by the laws of all\nknown and civilized nations, the person is judged innocent, who kills\nanother, forcibly attempting or endangering his life; a conspiring and\nuniversal testimony, which proves that in justifiable homicide, there\nis nothing repugnant to the law of nature.\n\nIV.[11] Public war, according to the law of nations, is either SOLEMN,\nthat is FORMAL, or LESS SOLEMN, that is INFORMAL. The name of lawful\nwar is commonly given to what is here called formal, in the same sense\nin which a regular will is opposed to a codicil, or a lawful marriage\nto the cohabitation of slaves. This opposition by no means implies\nthat it is not allowed to any man, if he pleases, to make a codicil,\nor to slaves to cohabit in matrimony, but only, that, by the civil\nlaw, FORMAL WILLS and SOLEMN MARRIAGES, were attended with peculiar\nprivileges and effects. These observations were the more necessary;\nbecause many, from a misconception of the word just or lawful, think\nthat all wars, to which those epithets do not apply, are condemned as\nunjust and unlawful. Now to give a war the formality required by the\nlaw of nations, two things are necessary. In the first place it must\nbe made on both sides, by the sovereign power of the state, and in the\nnext place it must be accompanied with certain formalities. Both of\nwhich are so essential that one is insufficient without the other.\n\nNow a public war, LESS SOLEMN, may be made without those formalities,\neven against private persons, and by any magistrate whatever. And\nindeed, considering the thing without respect to the civil law, every\nmagistrate, in case of resistance, seems to have a right to take up\narms, to maintain his authority in the execution of his office; as\nwell as to defend the people committed to his protection. But as a\nwhole state is by war involved in danger, it is an established law in\nalmost all nations that no war can be made but by the authority of the\nsovereign in each state. There is such a law as this in the last book\nof Plato ON LAWS. And by the Roman law, to make war, or levy troops\nwithout a commission from the Prince was high treason. According to the\nCornelian law also, enacted by Lucius Cornelius Sylla, to do so without\nauthority from the people amounted to the same crime. In the code of\nJustinian there is a constitution, made by Valentinian and Valens,\nthat no one should bear arms without their knowledge and authority.\nConformably to this rule, St. Augustin says, that as peace is most\nagreeable to the natural state of man, it is proper that Princes should\nhave the sole authority to devise and execute the operations of war.\nYet this general rule, like all others, in its application must always\nbe limited by equity and discretion.\n\nIn certain cases this authority may be communicated to others. For it\nis a point settled beyond all doubt that subordinate magistrates may,\nby their officers, reduce a few disobedient and tumultuous persons\nto subjection, provided, that to do it, it requires not a force of\nsuch enormous magnitude as might endanger the state. Again, if the\ndanger be so imminent as to allow of no time for an application to the\nsovereign executive power, here too the necessity is admitted as an\nexception to the general rule. Lucius Pinarius the Governor of Enna, a\nSicilian garrison, presuming upon this right, upon receiving certain\ninformation that the inhabitants had formed a conspiracy to revolt to\nthe Carthaginians, put them all to the sword, and by that means saved\nthe place. Franciscus Victoria allows the inhabitants of a town to take\nup arms, even without such a case of necessity, to redress their own\nwrongs, which the Prince neglects to avenge, but such an opinion is\nrejected by others.\n\nV. Whether the circumstances, under which subordinate magistrates are\nauthorised to use military force, can properly be called public war or\nnot, is a matter of dispute among legal writers, some affirming and\nothers denying it. If indeed we call no other public war, but that\nwhich is made by magisterial authority, there is no doubt but that\nsuch suppressions of tumult are public wars, and those who in such\ncases resist the magistrate in the execution of his office, incur the\nguilt of rebellion against superiors. But if public war is taken in the\nhigher sense of FORMAL war, as it undoubtedly often is; those are not\npublic wars; because to entitle them to the full rights of such, the\ndeclaration of the sovereign power and other requisites are wanting.\nNor do the loss of property and the military executions, to which\nthe offenders are subject, at all affect the question.[12] For those\ncasualties are not so peculiarly attached to formal war, as to be\nexcluded from all other kinds. For it may happen, as in an extensive\nempire for instance, that persons in subordinate authority, may, when\nattacked, or threatened with attack, have powers granted to commence\nmilitary operations. In which case the war must be supposed to commence\nby the authority of the sovereign power; as a person is considered\nto be the author of a measure which by virtue of his authority he\nempowers another to perform. The more doubtful point is, whether, where\nthere is no such commission, a conjecture of what is the will of the\nsovereign power be sufficient. This seems not admissible. For it is\nnot sufficient to consider, what we suppose would be the Sovereign's\npleasure, if he were consulted; but what would be his actual will, in\nmatters admitting of time for deliberation, even though he were not\nformally consulted; if a law was to be passed upon those matters. \"For\nthough UNDER SOME PARTICULAR CIRCUMSTANCES, it may be necessary to\nwaive consulting the will of the sovereign, yet this would by no means\nauthorise it as a GENERAL PRACTICE. For the safety of the state would\nbe endangered, if subordinate powers should usurp the right of making\nwar at their discretion. It was not without reason, that Cneus Manlius\nwas accused by his Lieutenants of having made war upon the Galatians\nwithout authority from the Roman people. For though the Galatians had\nsupplied Antiochus with troops, yet as peace had been made with him, it\nrested with the Roman people, and not with Manlius to determine in what\nmanner the Galatians should be punished for assisting an enemy. Cato\nproposed that Julius Caesar should be delivered up to the Germans for\nhaving attacked them in violation of his promise, a proposal proceeding\nrather from the desire to be rid of a formidable rival, than from any\nprinciple of justice.\n\nThe case was thus; the Germans had assisted the Gauls, enemies of\nthe Roman people, therefore they had no reason to complain of the\ninjury done to them, if the war against the Gauls, in which they had\nmade themselves a party concerned, was just. But Caesar ought to have\ncontented himself with driving the Germans out of Gaul, the province\nassigned him, without pursuing them into their own country, especially\nas there was no farther danger to be apprehended from them; unless he\nhad first consulted the Roman people. It was plain, then, the Germans\nhad no right to demand the surrender of Caesar's person, though the\nRomans had a right to punish him for having exceeded his commission. On\na similar occasion the Carthaginians answered the Romans; \"It is not\nthe subject of inquiry whether Hannibal has besieged Saguntum, by his\nown private or by public authority, but whether justly or unjustly. For\nwith respect to one of our own subjects it is our business to inquire\nby what authority he has acted; but the matter of discussion with you\nis, whether he has broken any treaty.\" Cicero defends the conduct of\nOctavius and Decimus Brutus, who had taken up arms against Antony. But\nthough it was evident that Antony deserved to be treated as an enemy,\nyet they ought to have waited for the determination of the Senate and\npeople of Rome, whether it were for the public interest not to take\nnotice of his conduct or to punish it, to agree to terms of peace with\nhim, or to have recourse to arms. This would have been proper; for no\none is obliged to exercise the right of punishing an enemy, if it is\nattended with probable danger.\n\nBut even if it had been judged expedient to declare Antony an enemy,\nthe choice of the persons to conduct the war should have been left to\nthe Senate and people of Rome. Thus when Cassius demanded assistance of\nthe Rhodians, according to treaty, they answered they would send it,\nif the senate thought proper. This refutation of Cicero's opinion will\nserve, along with many other instances to be met with; as an admonition\nnot to be carried away by the opinions of the most celebrated writers,\nparticularly the most brilliant orators, who often speak to suit the\ncircumstances of the moment. But all political investigation requires\na cool and steady judgment, not to be biased by examples, which may\nrather be excused than vindicated.\n\nSince then it has already been established that no war can lawfully be\nmade but by the sovereign power of each state, in respect to all the\nquestions connected with war, it will be necessary to examine what that\nsovereign power is, and who are the persons that hold it.\n\nVI. The moral power then of governing a state, which is called by\nThucydides the civil power, is described as consisting of three parts\nwhich form the necessary substance of every state; and those are the\nright of making its own laws, executing them in its own manner, and\nappointing its own magistrates. Aristotle, in the fourth book of his\nPolitics, comprises the sovereignty of a state in the exercise of the\ndeliberative, executive, and judicial powers. To the deliberative\nbranch he assigns the right of deciding upon peace or war, making or\nannulling treaties, and framing and passing new laws. To these he\nadds the power of inflicting death, banishment, and forfeiture, and\nof punishing also for public peculation. In the exercise of judicial\npower, he includes not only the punishment of crimes and misdemeanors,\nbut the redress of civil injuries.[13] Dionysius of Halicarnassus,\npoints out three distinguishing marks of sovereign power; and those\nare, the right of appointing magistrates, the right of enacting and\nrepealing laws, and the right of making war and peace. To which, in\nanother part, he adds the administration of justice, the supreme\nauthority in matters of religion, and the right of calling general\ncouncils.\n\nA true definition comprehends every possible branch of authority that\ncan grow out of the possession and exercise of sovereign power. For\nthe ruler of every state must exercise his authority either in person,\nor through the medium of others. His own personal acts must be either\ngeneral or special. He may be said to do GENERAL acts in passing or\nrepealing laws, respecting either temporal matters, or spiritual\nconcerns, as far as the latter relate to the welfare of the state. The\nknowledge of these principles is called by Aristotle the masterpiece in\nthe science of government.\n\nThe particular acts of the Sovereign are either directly of a public\nnature, or a private, but even the latter bear reference to his public\ncapacity. Now the acts of the sovereign executive power of a directly\npublic kind are the making of peace and war and treaties, and the\nimposition of taxes, and other similar exercises of authority over the\npersons and property of its subjects, which constitute the sovereignty\nof the state. Aristotle calls the knowledge of this practice political\nand deliberative science.\n\nThe private acts of the sovereign are those, in which by his authority,\ndisputes between individuals are decided, as it is conducive to the\npeace of society that these should be settled. This is called by\nAristotle the judicial power. Thus the acts of the sovereign are\ndone in his name by his magistrates or other officers, among whom\nambassadors are reckoned. And in the exercise of all those rights\nsovereign power consists.\n\nVII. That power is called sovereign, whose actions are not subject to\nthe controul of any other power, so as to be annulled at the pleasure\nof any other human will. The term ANY OTHER HUMAN WILL exempts the\nsovereign himself from this restriction, who may annul his own acts,\nas may also his successor, who enjoys the same right, having the same\npower and no other. We are to consider then what is the subject in\nwhich this sovereign power exists. Now the subject is in one respect\ncommon, and in another proper, as the body is the common subject of\nsight, the eye the proper, so the common subject of sovereign power is\nthe state, which has already been said to be a perfect society of men.\n\nNow those nations, who are in a state of subjugation to another power,\nas the Roman provinces were, are excluded from this definition. For\nthose nations are not sovereign states of themselves, in the present\nacceptation of the word; but are subordinate members of a great\nstate, as slaves are members of a household. Again it happens that\nmany states, forming each an independent body, may have one head.\nFor political are not like natural bodies, to only one of which the\nsame head can belong. Whereas in the former, one person can exercise\nthe function of the head to many distinct bodies. As a certain proof\nof which, when the reigning house has become extinct, the sovereign\npower returns to the hands of the nation. So it may happen, that many\nstates may be connected together by the closest federal union, which\nStrabo, in more places than one calls a system, and yet each retain the\ncondition of a perfect, individual state, which has been observed by\nAristotle and others in different parts of their writings. Therefore\nthe common subject of sovereign power is the state, taken in the sense\nalready explained. The proper subject is one or more persons according\nto the laws and customs of each nation. This is called by Galen in the\nsixth book DE PLACITIS HIPPOCRATE ET PLATONIS, the first power of the\nstate.\n\nVIII. And here is the proper place for refuting the opinion of those,\nwho maintain that, everywhere and without exception, the sovereign\npower is vested in the people, so that they have a right to restrain\nand punish kings for an abuse of their power. However there is no man\nof sober wisdom, who does not see the incalculable mischiefs, which\nsuch opinions have occasioned, and may still occasion; and upon the\nfollowing grounds they may be refuted.\n\nFrom the Jewish, as well as the Roman Law, it appears that any one\nmight engage himself in private servitude to whom he pleased. Now if\nan individual may do so, why may not a whole people, for the benefit\nof better government and more certain protection, completely transfer\ntheir sovereign rights to one or more persons, without reserving any\nportion to themselves? Neither can it be alleged that such a thing is\nnot to be presumed, for the question is not, what is to be presumed\nin a doubtful case, but what may lawfully be done. Nor is it any\nmore to the purpose to object to the inconveniences, which may, and\nactually do arise from a people's thus surrendering their rights. For\nit is not in the power of man to devise any form of government free\nfrom imperfections and dangers. As a dramatic writer says, \"you must\neither take these advantages with those imperfections, or resign your\npretensions to both.\"\n\nNow as there are different ways of living, some of a worse, and some\nof a better kind, left to the choice of every individual; so a nation,\n\"under certain circumstances, WHEN for instance, the succession to the\nthrone is extinct, or the throne has by any other means become vacant,\"\nmay chuse what form of government she pleases. Nor is this right to be\nmeasured by the excellence of this or that form of government, on which\nthere may be varieties of opinion, but by the will of the people.\n\nThere may be many reasons indeed why a people may entirely relinquish\ntheir rights, and surrender them to another: for instance, they may\nhave no other means of securing themselves from the danger of immediate\ndestruction, or under the pressure of famine it may be the only\nway, through which they can procure support. For if the Campanians,\nformerly, when reduced by necessity surrendered themselves to the Roman\npeople in the following terms:--\"Senators of Rome, we consign to your\ndominion the people of Campania, and the city of Capua, our lands,\nour temples, and all things both divine and human,\" and if another\npeople as Appian relates, offered to submit to the Romans, and were\nrefused, what is there to prevent any nation from submitting in the\nsame manner to one powerful sovereign? It may also happen that a master\nof a family, having large possessions, will suffer no one to reside\nupon them on any other terms, or an owner, having many slaves, may give\nthem their liberty upon condition of their doing certain services, and\npaying certain rents; of which examples may be produced. Thus Tacitus,\nspeaking of the German slaves, says, \"Each has his own separate\nhabitation, and his own household to govern. The master considers him\nas a tenant, bound to pay a certain rent in corn, cattle, and wearing\napparel. And this is the utmost extent of servitude.\"\n\nAristotle, in describing the requisites, which fit men for servitude,\nsays, that \"those men, whose powers are chiefly confined to the body,\nand whose principal excellence consists in affording bodily service,\nare naturally slaves, because it is their interest to be so.\" In the\nsame manner some nations are of such a disposition that they are more\ncalculated to obey than to govern, which seems to have been the opinion\nwhich the Cappadocians held of themselves, who when the Romans offered\nthem a popular government, refused to accept it, because the nation\nthey said could not exist in safety without a king. Thus Philostratus\nin the life of Apollonius, says, that it was foolish to offer liberty\nto the Thracians, the Mysians, and the Getae, which they were not\ncapable of enjoying. The example of nations, who have for many ages\nlived happily under a kingly government, has induced many to give the\npreference to that form. Livy says, that the cities under Eumenes would\nnot have changed their condition for that of any free state whatsoever.\nAnd sometimes a state is so situated, that it seems impossible it can\npreserve its peace and existence, without submitting to the absolute\ngovernment of a single person, which many wise men thought to be the\ncase with the Roman Republic in the time of Augustus Caesar. From\nthese, and causes like these it not only may, but generally does\nhappen, that men, as Cicero observes in the second book of his offices,\nwillingly submit to the supreme authority of another.\n\nNow as property may be acquired by what has been already styled just\nwar, by the same means the rights of sovereignty may be acquired. Nor\nis the term sovereignty here meant to be applied to monarchy alone,\nbut to government by nobles, from any share in which the people are\nexcluded. For there never was any government so purely popular, as not\nto require the exclusion of the poor, of strangers, women, and minors\nfrom the public councils. Some states have other nations under them,\nno less dependent upon their will, than subjects upon that of their\nsovereign princes. From whence arose that question, Are the Collatine\npeople in their own power? And the Campanians, when they submitted\nto the Romans, are said to have passed under a foreign dominion. In\nthe same manner Acarnania and Amphilochia are said to have been under\nthe dominion of the Aetolians; Peraea and Caunus under that of the\nRhodians; and Pydna was ceded by Philip to the Olynthians. And those\ntowns, that had been under the Spartans, when they were delivered from\ntheir dominion, received the name of the free Laconians. The city of\nCotyora is said by Xenophon to have belonged to the people of Sinope.\nNice in Italy, according to Strabo, was adjudged to the people of\nMarseilles; and the island of Pithecusa to the Neapolitans. We find in\nFrontinus, that the towns of Calati and Caudium with their territories\nwere adjudged, the one to the colony of Capua, and the other to that\nof Beneventum. Otho, as Tacitus relates, gave the cities of the Moors\nto the Province of Baetia. None of these instances, any more than the\ncessions of other conquered countries could be admitted, if it were a\nreceived rule that the rights of sovereigns are under the controul and\ndirection of subjects.\n\nNow it is plain both from sacred and profane history, that there are\nkings, who are not subject to the controul of the people in their\ncollective body; God addressing the people of Israel, says, if thou\nshalt say, \"I will place a king over me\"; and to Samuel \"Shew them the\nmanner of the king, who shall reign over them.\" Hence the King is said\nto be anointed over the people, over the inheritance of the Lord, over\nIsrael. Solomon is styled King over all Israel. Thus David gives thanks\nto God, for subduing the people under him. And Christ says, \"the Kings\nof the nations bear rule over them.\" There is a well known passage in\nHorace, \"Powerful sovereigns reign over their own subjects, and the\nsupreme being over sovereigns themselves.\" Seneca thus describes the\nthree forms of government, \"Sometimes the supreme power is lodged in\nthe people, sometimes in a senate composed of the leading men of the\nstate, sometimes this power of the people, and dominion over the people\nthemselves is vested in a single person.\" Of the last description are\nthose, who, as Plutarch says, exercise authority not according to the\nlaws, but over the laws. And in Herodotus, Otanes describes a monarch\nas one whose acts are not subject to controul. Dion Prusaeensis also\nand Pausanias define a monarchy in the same terms.\n\nAristotle says there are some kings, who have the same right, which the\nnation elsewhere possesses over persons and property. Thus when the\nRoman Princes began to exercise regal power, the people it was said\nhad transferred all their own personal sovereignty to them, which gave\nrise to the saying of Marcus Antoninus the Philosopher, that no one\nbut God alone can be judge of the Prince. Dion. L. liii. speaking of\nsuch a prince, says, \"he is perfectly master of his own actions, to do\nwhatever he pleases, and cannot be obliged to do any thing against his\nwill.\" Such anciently was the power of the Inachidae established at\nArgos in Greece. For in the Greek Tragedy of the Suppliants, Aeschylus\nhas introduced the people thus addressing the King: \"You are the\nstate, you the people; you the court from which there is no appeal,\nyou preside over the altars, and regulate all affairs by your supreme\nwill.\" King Theseus himself in Euripides speaks in very different\nterms of the Athenian Republic; \"The city is not governed by one man,\nbut in a popular form, by an annual succession of magistrates.\" For\naccording to Plutarch's explanation, Theseus was the general in war,\nand the guardian of the laws; but in other respects nothing more\nthan a citizen. So that they who are limited by popular controul are\nimproperly called kings. Thus after the time of Lycurgus, and more\nparticularly after the institution of the Ephori, the Kings of the\nLacedaemonians are said by Polybius, Plutarch, and Cornelius Nepos,\nto have been Kings more in name than in reality. An example which was\nfollowed by the rest of Greece. Thus Pausanias says of the Argives to\nthe Corinthians, \"The Argives from their love of equality have reduced\ntheir kingly power very low; so that they have left the posterity of\nCisus nothing more than the shadow of Kings.\" Aristotle denies such to\nbe proper forms of government, because they constitute only a part of\nan Aristocracy or Democracy.\n\nExamples also may be found of nations, who have not been under a\nperpetual regal form, but only for a time under a government exempt\nfrom popular controul. Such was the power of the Amimonians among\nthe Cnidians, and of the Dictators in the early periods of the Roman\nhistory, when there was no appeal to the people, from whence Livy says,\nthe will of the Dictator was observed as a law. Indeed they found this\nsubmission the only remedy against imminent danger, and in the words of\nCicero, the Dictatorship possessed all the strength of royal power.\n\nIt will not be difficult to refute the arguments brought in favour of\nthe contrary opinion. For in the first place the assertion that the\nconstituent always retains a controul over the sovereign power, which\nhe has contributed to establish, is only true in those cases where\nthe continuance and existence of that power depends upon the will and\npleasure of the constituent: but not in cases where the power, though\nit might derive its origin from that constituent, becomes a necessary\nand fundamental part of the established law. Of this nature is that\nauthority to which a woman submits when she gives herself to a husband.\nValentinian the Emperor, when the soldiers who had raised him to the\nthrone, made a demand of which he did not approve, replied; \"Soldiers,\nyour election of me for your emperor was your own voluntary choice; but\nsince you have elected me, it depends upon my pleasure to grant your\nrequest. It becomes you to obey as subjects, and me to consider what is\nproper to be done.\"\n\nNor is the assumption true, that all kings are made by the people,\nas may be plainly seen from the instances adduced above, of an owner\nadmitting strangers to reside upon his demesnes on condition of their\nobedience, and of nations submitting by right of conquest. Another\nargument is derived from a saying of the Philosophers, that all\npower is conferred for the benefit of the governed and not of the\ngoverning party. Hence from the nobleness of the end, it is supposed\nto follow, that subjects have a superiority over the sovereign. But it\nis not universally true, that all power is conferred for the benefit\nof the party governed. For some powers are conferred for the sake\nof the governor, as the right of a master over a slave, in which\nthe advantage of the latter is only a contingent and adventitious\ncircumstance. In the same manner the gain of a Physician is to reward\nhim for his labour; and not merely to promote the good of his art.\nThere are other kinds of authority established for the benefit of\nboth parties, as for instance, the authority of a husband over his\nwife. Certain governments also, as those which are gained by right\nof conquest, may be established for the benefit of the sovereign;\nand yet convey no idea of tyranny, a word which in its original\nsignification, implied nothing of arbitrary power or injustice, but\nonly the government or authority of a Prince. Again, some governments\nmay be formed for the advantage both of subjects and sovereign, as\nwhen a people, unable to defend themselves, put themselves under\nthe protection and dominion of any powerful king. Yet it is not to\nbe denied, but that in most governments the good of the subject is\nthe chief object which is regarded: and that what Cicero has said\nafter Herodotus, and Herodotus after Hesiod, is true, that Kings were\nappointed in order that men might enjoy complete justice.\n\nNow this admission by no means goes to establish the inference that\nkings are amenable to the people. For though guardianships were\ninvented for the benefit of wards, yet the guardian has a right to\nauthority over the ward. Nor, though a guardian may for mismanagement\nbe removed from his trust, does it follow that a king may for the same\nreason be deposed. The cases are quite different, the guardian has\na superior to judge him; but in governments, as there must be some\ndernier resort, it must be vested either in an individual, or in some\npublic body, whose misconduct, as there is no superior tribunal before\nwhich they can be called, God declares that he himself will judge. He\neither punishes their offences, should he deem it necessary; or permits\nthem for the chastisement of his people.\n\nThis is well expressed by Tacitus: he says, \"you should bear with\nthe rapacity or luxury of rulers, as you would bear with drought,\nor excessive rains, or any other calamities of nature. For as long\nas men exist there will be faults and imperfections; but these are\nnot of uninterrupted continuance, and they are often repaired by\nthe succession of better times.\" And Marcus Aurelius speaking of\nsubordinate magistrates, said, that they were under the controul of\nthe sovereign: but that the sovereign was amenable to God. There\nis a remarkable passage in Gregory of Tours, where that Bishop thus\naddresses the King of France, \"If any of us, Sir, should transgress the\nbounds of justice, he may be punished by you. But if you exceed them,\nwho can call you to account? For when we address you, you may hear us\nif you please; but if you will not, who can judge you, except him, who\nhas declared himself to be righteousness?\" Among the maxims of the\nEssenes, Porphyry cites a passage, that \"no one can reign without the\nspecial appointment of divine providence.\" Irenaeus has expressed this\nwell, \"Kings are appointed by him at whose command men are created; and\ntheir appointment is suited to the condition of those, whom they are\ncalled to govern.\" There is the same thought in the Constitutions of\nClement, \"You shall fear the King, for he is of the Lord's appointment.\"\n\nNor is it an objection to what has been said, that some nations have\nbeen punished for the offences of their kings; for this does not\nhappen, because they forbear to restrain their kings, but because they\nseem to give, at least a tacit consent to their vices, or perhaps,\nwithout respect to this, God may use that sovereign power which he has\nover the life and death of every man to inflict a punishment upon the\nking by depriving him of his subjects.\n\nIX. There are some who frame an imaginary kind of mutual subjection,\nby which the people are bound to obey the king, as long as he governs\nwell; but his government is subject to their inspection and controul.\nIf they were to say that his duty to the sovereign does not oblige any\none to do an act manifestly unjust and repugnant to the law of God;\nthey would say nothing but what is true and universally admitted, but\nthis by no means includes a right to any controul over the Prince's\nconduct in his lawful government. But if any people had the opportunity\nof dividing the sovereign power with the king, the privileges of the\none, and the prerogatives of the other ought to be defined by certain\nbounds, which might easily be known, according to the difference of\nplaces, persons, or circumstances.\n\nNow the supposed good or evil of any act, especially in political\nmatters which admit of great variety of opinions and much discussion,\nis not a sufficient mark to ascertain these bounds. From whence the\ngreatest confusion must follow, if under pretence of promoting good\nor averting evil measures, the people might struggle for the Prince's\njurisdiction: a turbulent state of affairs, which no sober minded\npeople ever wished to experience.\n\nX. After refuting false opinions, it remains to apply some cautions,\nwhich may point out the way to ascertain correctly the person to whom\nsovereign power, in every state, of right belongs. The first caution\nnecessary is to avoid being deceived by ambiguous terms, or appearances\nforeign to the real subject. For instance, among the Latins, although\nthe terms PRINCIPALITY and KINGDOM are generally opposed to each\nother, when Caesar says, that the father of Vercingetorix held the\nprincipality of Gaul, and was put to death for aiming at sovereign\npower; and when Piso, in Tacitus calls Germanicus the son of a Roman\nPrince, not of a Parthian King; and when Suetonius says, that Caligula\nwas on the point of converting the power of a prince into that of a\nking; and Velleius asserts that Maroboduus not contented with the\nauthority of a prince over voluntary adherents and dependents, was\ngrasping in his mind at regal power; yet we find these terms though\nin reality very distinct were often confounded. For the Lacedaemonian\nchiefs, the descendants of Hercules, though subject to the controul\nof the Ephori, were nevertheless called kings: and Tacitus says,\nthat among the ancient Germans there were kings, who governed more\nby the influence of persuasion than by the authority of power. Livy\ntoo, speaking of king Evander, describes him as reigning more by\npersonal authority than by his regal power; and Aristotle, Polybius,\nand Diodorus give the names of Kings to the Suffetes or Judges of\nthe Carthaginians. In the same manner Solinus also calls Hanno King\nof the Carthaginians. Strabo speaks of Scepsis in Troas, that having\nincorporated the Milesians into the state, it formed itself into a\nDemocracy, leaving the descendants of the ancient kings the title, and\nsomething of the dignity of kings.\n\nOn the other hand, the Roman emperors, after they had exercised openly,\nand without any disguise, a most absolute monarchical power, were\nnotwithstanding called Princes. And in some popular states the chief\nmagistrates are graced with ensigns of royalty.\n\nAgain the states general, that is the convention of those who represent\nthe people, divided into classes according to Gunther, consist of three\norders, which are the Prelates, the Nobles, and Deputies of large\ntowns. In some places, they serve as a greater council to the king, to\ncommunicate to him the complaints of his people, which might otherwise\nbe kept from his ears; leaving him at the same time full liberty to\nexercise his own discretion upon the matters so communicated. But in\nother places they form a body with power to inquire into the prince's\nmeasures, and to make laws.\n\nMany think that in order to know whether a prince be sovereign or not,\nit is proper to inquire whether his title to the crown is by election\nor inheritance. For they maintain that hereditary monarchies alone\nare sovereign. But this cannot be received as a general criterion.\nFor sovereignty consists not merely in the TITLE to the throne, which\nonly implies that the successor has a right to all the privileges and\nprerogatives that his ancestors enjoyed, but it by no means affects the\nnature or extent of his powers. For right of election conveys all the\npowers, which the first election or appointment conferred. Among the\nLacedaemonians the crown was hereditary even after the institution of\nthe Ephori. And Aristotle describing the chief power of such a state,\nsays, \"Of these kingdoms, some are hereditary, and others elective.\"\nIn the heroic times most of the kingdoms in Greece were of this\ndescription, as we are informed by Thucydides. The Roman empire, on the\ncontrary, even after the power of the Senate and people was abolished,\nwas given or confirmed by election.\n\nXI. Another caution is necessary. For to inquire into the matter of a\nright is not the same thing as to examine the nature of its tenure. A\ndistinction which takes place not only in corporeal but in incorporeal\npossessions. For a right of passage or carriage through a ground is\nno less a right than that which entitles a man to the possession of\nthe land itself. Now some hold these privileges by a full right of\nproperty, some by an usufructuary, and others by a temporary right.\nThus the Roman Dictator had sovereign power by a temporary right. In\nthe same manner kings, both those who are the first of their line\nelected to the throne, and those who succeed them in the lawful order,\nenjoy an usufructuary right, or inalienable right. But some sovereigns\nhold their power by a plenary right of property; when for instance it\ncomes into their possession by the right of lawful conquest, or when\na people, to avoid greater evils, make an unqualified surrender of\nthemselves and their rights into their hands.\n\nThe opinion of those can never be assented to, who say that the power\nof the Dictator was not sovereign, because it was not permanent. For in\nthe moral world the nature of things is known from their operations.\nThe powers attended with equal effects are entitled to equal names.\nNow the Dictator for the time being performed all acts with the same\nauthority as the most absolute sovereign; nor could any other power\nannul his acts. The permanence therefore of uncertainty alters not the\nnature of a right, although it would undoubtedly abridge its dignity,\nand diminish its splendour.[14]\n\n\n\n\nBOOK II.\n\n\n\n\nCHAPTER I.\n\nDEFENCE OF PERSON AND PROPERTY.\n\n Causes of War--Defence of person and property--What are called\n justifiable causes of war--Justifiable causes of War are\n Defence, recovery of one's property or debt, or the punishment\n of offences committed--War for defence of life, justifiable, and\n lawful--This kind of war lawful against an aggressor only--The\n danger must be present and real, not an imaginary danger--Lawful\n to kill any one attempting to maim one's person, or violate one's\n chastity--Occasions where this right may be lawfully waved--This\n right to be waved particularly with respect to the person of the\n Sovereign, which is sacred and inviolable--Homicide in defence of\n one's property allowed by the law of nature--How far homicide is\n permitted by the law of Moses--Self-defence in public war--Not\n lawful to attack any power solely on account of its increasing\n greatness--The hostile measures of an aggressor, not to be\n justified on the plea of self-defence.\n\n\nI. The causes of war by which are meant the justifiable causes, are\nnow to be considered. For in some cases motives of interest operate\ndistinctly from motives of justice. Polybius accurately distinguishes\nthese motives from each other, and from the beginning of the war, or\nthat which gave occasion to the first acts of hostility; as was the\ncase when Ascanius wounded the stag, which gave rise to the war between\nTurnus and Aeneas. But though there is an actual distinction between\nthe justifiable causes, the pretexts, and the beginning of war; yet\nthe terms used to express them are often confounded. For what we call\njustifiable causes, Livy, in the speech which he has put into the mouth\nof the Rhodians, calls beginnings. The Rhodian deputies said, \"You\nRomans profess to believe that your wars are successful, because they\nare just; nor do you boast so much of their victorious issue, as of\nthe just principles, upon which you make them.\" In which sense Aelian\nstyles them \u1f00\u03c1\u03c7\u03b1\u03c2 \u03c0\u03bf\u03bb\u03b5\u03bc\u03c9\u03bd {archas polem\u00f4n} and Diodorus Siculus,\nin speaking of the war of the Lacedaemonians against the Eleans gives\nthem the name of \u03c0\u03c1\u03bf\u03c6\u03b1\u03c3\u03b5\u03b9\u03c2 {prophaseis} and \u1f00\u03c1\u03c7\u03b1\u03c2 {archas}.\n\nThe principal drift of our argument rests upon these justifiable\ncauses, to which the sentiment of Coriolanus in Dionysius of\nHalicarnassus, particularly applies, he says, \"in the first place, I\nbeseech you to consider how you may find pious and just pretexts for\nthe war.\" And Demosthenes in his second Olynthiac, makes a similar\nobservation, \"I think, _says he_, that as in a ship, or house, or any\nother fabric, the lowest parts ought to be the strongest; so in all\npolitical measures the motives and pretexts ought to be laid deeply\nin the principles of truth and justice.\" The following language of\nDion Cassius is no less applicable to the question. \"Justice must be\nmade the principal ground of our actions. For with such support there\nis the best hope of success to our arms. But without that, any point\nwhich may be gained for the moment has no firm ground to rest upon.\"\nTo which may be added, the words of Cicero, who maintains those wars\nto be unjust, which are made without sufficient cause. And in another\nplace, he reproves Crassus for having intended to pass the Euphrates,\nwhen there was no cause of war. Which is no less true of public than of\nprivate wars. Hence come the complaints of Seneca, \"Why do we restrain\nhomicide, and the murder of individuals, but glory in the crime of\nslaughter, which destroys whole nations? Avarice and cruelty know not\nany bounds. By decrees of the Senate, and of the people cruel acts are\nauthorized, and measures, which are pursued by order of the state, are\nforbidden to individuals.\" Wars indeed undertaken by public authority\nare attended with certain effects of right, and have the sanction of\nopinion in their favour. But they are not the less criminal, when made\nwithout just cause. For which reason Alexander was not improperly\nstyled a robber by the Scythian ambassadors, as may be seen in Quintus\nCurtius. Seneca and Lucan give him the same appellation; the Indian\nsages call him a madman; and a pirate once presumed to rank him with\nhis own class. Justin speaks of Philip in the same terms, who, _says\nhe_, in deciding a dispute between two rival kings, stripped both\nof their dominions with all the treachery and violence of a robber.\nAugustin has a pertinent remark on this subject. He says, what are\nunjustly acquired dominions, but the spoils of robbery? In the same\nstrain, Lactantius says, \"Men, captivated with the appearances of vain\nglory, give the names of virtues to their crimes.\" Injury, or the\nprevention of injury forms the only justifiable cause of war. \"And, _in\nthe language of the same Augustin_, all the evil consequences of war\nare to be laid at the door of the aggressor.\" Thus the Roman Herald in\na declaration of war makes a solemn appeal against the aggressor, as\nhaving violated the laws of nations, and refused proper satisfaction.\n\nII. The grounds of war are as numerous as those of judicial actions.\nFor where the power of law ceases, there war begins. Now there are\nmethods in law to prevent intended injuries, as well as actions for\nthose actually committed. For CIVIL INJURIES various methods of\nredress, or prevention are appointed by the law; and by the same\npower securities are provided to prevent the commission of crimes and\nmisdemeanors. In civil cases, the party aggrieved may recover damages\nfor the injuries sustained; and in crimes, which are offences against\nthe public, the aggressor must submit to actual punishment. Plato, in\nhis ninth book on laws, very properly makes the same distinction, as\nHomer had done before him.\n\nNow reparation or indemnity relates to what either does or did belong\nto us; which gives rise to real and personal actions. These ascertain\nour right to the damages, which are our due, either from an agreement,\nor from an injury received. A right which is termed in law a right by\ncontract, or injury. Crimes, which are offences against society, are\nprosecuted by indictment, that is by an accusation in the name of the\nsovereign.\n\nThe justifiable causes generally assigned for war are three, defence,\nindemnity, and punishment, all which are comprised in the declaration\nof Camillus against the Gauls, enumerating all things, which it is\nright to defend, to recover, and the encroachment on which it is right\nto punish.\n\nThere is an omission in this enumeration, unless the word recover be\ntaken in its most extensive sense. For recovering by war what we have\nlost, includes indemnity for the past, as well as the prosecution of\nour claim to a debt. Plato has not omitted to notice this distinction,\nfor he has said, \"that wars are made to punish not only oppression or\nrobbery, but also fraud and deception.\" With whom Seneca agrees; for\nto command payment of what you owe, he calls, \"an equitable sentence,\nstamped with the authority of the law of nations.\" Indeed the form\nwhich was prescribed for the Roman heralds to use in declarations\nof war, bears exactly the same import. For therein the aggressor is\ncharged with having neither given, paid, nor done what was due. Sallust\nin one of his fragments, has made a Tribune, in his harangue to the\npeople, say, \"As a final settlement of all discussions, I demand\nrestitution according to the law of nations.\"\n\nSt. Augustin, in defining those to be just wars, which are made to\navenge injuries has taken the word avenge in a general sense of\nremoving and preventing, as well as punishing aggressions. This appears\nto be his meaning from the following sentence of the passage, in which\nhe does not enumerate the particular acts, which amount to injury,\nbut adds, by way of illustration, that \"the state or nation, which\nhas neglected to punish the aggressions of its own subjects, or to\nmake reparation for the losses occasioned by those aggressions, is\na proper object of hostility and attack.\" Prompted by this natural\nknowledge of right and wrong, the Indian King, as we are informed by\nDiodorus, accused Semiramis of having commenced war against him without\nhaving received any injury. Thus the Romans expostulated with the\nSenones, that they ought not to attack a people who had given them no\nprovocation. Aristotle in the second book and second chapter of his\nAnalytics, says, war generally is made upon those who have first done\nan injury. Quintus Curtius describes the Abian Scythians, as the best\nacquainted with the principles of justice of any of the Barbarians. For\nthey declined having recourse to arms, unless provoked by aggression.\nA just cause then of war is an injury, which though not actually\ncommitted, threatens our persons or property with danger.\n\nIII. It has already been proved that when our lives are threatened with\nimmediate danger, it is lawful to kill the aggressor, if the danger\ncannot otherwise be avoided: an instance, as it has been shewn, on\nwhich the justice of private war rests. We must observe that this kind\nof defence derives its origin from the principle of self-preservation,\nwhich nature has given to every living creature, and not from the\ninjustice or misconduct of the aggressor. Wherefore though he may be\nclear of guilt, as for instance a soldier in actual service, mistaking\nmy person for that of another, or a madman in his frenzy, or a man\nwalking in his sleep, none of these cases deprive me of the right of\nself-defence against those persons. For I am not bound to submit to the\ndanger or mischief intended, any more than to expose myself to the\nattacks of a wild beast.\n\nIV. It admits of some doubt, whether those, who unintentionally\nobstruct our defence, or escape, which are necessary to our\npreservation, may be lawfully maimed or killed. There are some, even\nTheologians, who think they may. And, certainly if we look to the law\nof nature alone, according to its principles, our own preservation\nshould have much more weight with us, than the welfare of society. But\nthe law of charity, especially the evangelical law, which has put our\nneighbour upon a level with ourselves, does not permit it.\n\nThomas Aquinas, if taken in a right sense, has justly observed, that in\nactual self-defence no man can be said to be purposely killed. Indeed,\nit may some times happen that there is no other way for a person to\nsave himself, than by designedly doing an act, by which the death of\nan aggressor must inevitably ensue. Yet here the death of any one was\nnot the primary object intended, but employed as the only means of\nsecurity, which the moment supplied. Still it is better for the party\nassaulted, if he can safely do it, to repel or disable the aggressor\nthan to shed his blood.\n\nV. The danger must be immediate, which is one necessary point. Though\nit must be confessed, that when an assailant seizes any weapon with an\napparent intention to kill me I have a right to anticipate and prevent\nthe danger. For in the moral as well as the natural system of things,\nthere is no point without some breadth. But they are themselves much\nmistaken, and mislead others, who maintain that any degree of fear\nought to be a ground for killing another, to prevent his SUPPOSED\nintention. It is a very just observation made by Cicero in his first\nbook of Offices, that many wrongs proceed from fear; as when the\nperson, who intends to hurt another, apprehends some danger to himself\nunless he took that method. Clearchus, in Xenophon, says, I have known\nsome men, who partly through misrepresentation, and partly through\nsuspicion, dreading one another, in order to prevent the supposed\nintentions of their adversaries, have committed the most enormous\ncruelties against those who neither designed, nor wished them any harm.\n\nCato in his speech for the Rhodians, says, \"Are we to prevent them by\ndoing first, what we say they intended to do to us?\" On this subject\nthere is a remarkable passage in Aulus Gellius, \"When a Gladiator\nprepares to enter the lists for combat, such is his lot that he must\neither kill his adversary, or be killed himself. But the life of man is\nnot circumscribed by the hard terms of such an over-ruling necessity,\nas to oblige him to do an injury to prevent him from receiving one.\"\nQuintilian has quoted a passage from Cicero, wherein the orator asks,\n\"Whoever made such a decision, or to whom could such a point be yielded\nwithout the most imminent danger, that you have a right to kill the\nperson, by whom you say, you fear that you shall afterwards be killed\nyourself?\" To which this passage of Euripides, may be applied, \"If your\nhusband, as you say, intended to have killed you, you ought to have\nwaited, till he actually did make the attempt.\" Conformably to which\nThucydides, in the first book of his history, has expressed himself in\nthe following terms, \"The issue of war is uncertain, nor ought we to\nbe so far transported by our fears, as to engage in immediate and open\nhostilities.\" The same writer too in his luminous description of the\ndangerous factions, that had arisen in the Grecian states, condemns the\napprobation bestowed on the person, that injured or destroyed another\nfrom whom he himself apprehended injury or destruction.\"\n\nLivy says, \"Men, to guard against their alarms, make themselves objects\nof terror; averting the danger from their own heads, by imposing upon\nothers the necessity of either doing or suffering the evil which they\nthemselves fear.\" Vibius asked a person, that appeared armed in the\nforum, \"Who gave you permission to shew your fear in this manner?\" A\nquestion not inapplicable to the present subject, and much commended\nby Quintilian. Livia also in Dion says, that great infamy redounds to\nthose, who by anticipation perpetrate the criminal act, which they fear.\n\nNow if any one intend no immediate violence, but is found to have\nformed a conspiracy to destroy me by assassination, or poison, or by\nfalse accusation, perjury, or suborned witnesses, I have no right to\nkill him. For my knowledge of the danger may prevent it. Or even if\nit were evident that I could not avoid the danger without killing\nhim; this would not establish my right to do so. For there is every\npresumption that my knowing it will lead me to apply for the legal\nremedies of prevention.\n\nVI. and VII. The next thing to be considered is, what must be said upon\nthe mutilation of a limb. Now, as the loss of a limb, especially that\nof a principal limb in the body, is a grievous detriment, and nearly\nequal to the loss of life, to which may be added the probability of\ndeath ensuing from such a calamity; the lawfulness of killing any one,\nwho makes such an attempt, if the danger cannot otherwise be avoided,\nscarce admits of a doubt. Neither is there any more difficulty in\nallowing the same right for the personal defence of chastity, the\npreservation of which, both in the common estimation of men, and by\nthe divine law, is deemed of equal value with life itself. We have an\nexample of this in Cicero, Quintilian, and Plutarch, in the person\nof one of Marius's tribunes, who was killed by a soldier. Among the\nactions of women, who have defended themselves, Heliodorus records that\nof Heraclea, which he calls a just defence of her injured honour.\n\nVIII. Though some, as it has been already said, admit the lawfulness of\nkilling the person, who attempts with open violence to destroy one's\nlife, yet they deem it more commendable to spare the life of another,\neven at the hazard of one's own. Yet to persons, in whose preservation\nthe public interest is involved, they will grant an exemption from\nthis rule of forbearance. Indeed it seems unsafe to impose upon ANY,\nwhose lives are of importance to others, a rule of forebearance so\ncontrary to all the principles of all law. This exemption therefore\nmust be allowed to all vested with any public office, which makes them\nresponsible for the safety of others; as the generals who conduct\narmies, or the rulers of the state, and many others in similar\nsituations; to whom may be applied the lines of Lucan--\"When the lives\nand safety of so many nations depend upon yours, and so great a portion\nof the world has chosen you for its head; it is cruelty to expose\nyourself wilfully to death.\"\n\nIX. On the other hand it may happen, that the aggressor may be one\nwhose person is rendered sacred and inviolable by all divine, human,\nand natural laws; which is the case with respect to the person of\nthe Sovereign. For the law of nature regards not only the principles\nof STRICT JUSTICE, but comprises other virtues also, as temperance,\nfortitude, and discretion, making the observance of them in certain\ncases, binding as well as honourable. To observe these we are bound\nalso by the law of charity.\n\nNor is the truth of this argument at all weakened by what Vasquez\nhas advanced, who maintains that the Sovereign who attempts the life\nof an individual loses, in reality, the character of Sovereign: a\ndoctrine fraught with equal absurdity and danger. For sovereignty\ncannot any more than property be forfeited by any particular act of\ndelinquency; unless it has been previously and expressly so enacted by\nthe fundamental laws of the state. For such a rule of forfeiture, which\nwould be productive of universal anarchy and confusion, never has been,\nnor ever will be established among any civilized people. For the maxim,\n\"that all government is framed for the benefit of the subject and not\nof the Sovereign,\" which Vasquez and many other writers lay down as a\nfundamental law, though it may be generally true in theory, is by no\nmeans applicable to the question. For a thing loses not its existence,\nby losing some part of its utility. Nor is there sufficient consistency\nin his observation, that every individual desires the safety of the\ncommonwealth on his own account, and therefore every one ought to\nprefer his own safety to that of the whole state. For we wish for the\npublic welfare not on our own account alone, but also for the sake of\nothers.\n\nThe opinion of those who think that friendship arises from necessity\nalone, is rejected as false, by the more sound Philosophers; as we feel\na spontaneous and natural inclination towards friendly intercourse.\nCharity indeed often persuades, and in some instances commands us to\nprefer the good of many to our own single advantage. To which the\nfollowing passage from Seneca is very applicable. \"It is not surprising\nthat princes, and kings, or whatever name the guardians of the public\nwelfare may bear, should be loved with a veneration and affection, far\nbeyond those of private friendship. For all men of sober judgment, and\nenlarged information deem the public interest of higher moment than\ntheir own. Their attachment therefore must be warmest to the person on\nwhom the well being and prosperity of the state depends.\" And to the\nsame effect, St. Ambrose in his third book of Offices, says, \"every\nman feels a greater delight in averting public than private danger.\"\nSeneca, the writer already quoted, produces two instances, the one of\nCallistratus at Athens, and the other of Rutilius at Rome, who refused\nto be restored from banishment thinking it better for two individuals\nto suffer hardship, than for the public to be plunged into calamities.\n\nXI.[15] The next object to be considered, relates to injuries affecting\nour property. In strict justice, it cannot be denied that we have a\nright to kill a robber, if such a step is inevitably necessary to the\npreservation of our property. For the difference between the value of\nlife and property is overbalanced by the horror which a robber excites,\nand by the favourable inclination felt by all men towards the injured\nand innocent. From whence it follows, that regarding that right alone,\na robber may be wounded or killed in his flight with the property, if\nit cannot otherwise be recovered. Demosthenes in his speech against\nAristocrates, exclaims, \"By all that is sacred, is it not a dreadful\nand open violation of law, not only of written law, but of that law\nwhich is the unwritten rule of all men, to be debarred from the right\nof using force against the robber as well as against the enemy; who\nis plundering your property?\" Nor is it forbidden by the precepts\nof charity, apart from all consideration of divine and human law,\nunless where the property is of little value, and beneath notice; an\nexception, which some writers have very properly added.\n\nXII. The sense of the Jewish law on this point is now to be considered.\nThe old law of Solon, to which Demosthenes, in his speech against\nTimocrates, appeals, agrees with it. From hence the substance of\nthe TWELVE TABLES, and Plato's maxim in his ninth book of laws were\ntaken. For they all agree in making a distinction between a thief who\nsteals by day, and the robber, who commits the act by night; though\nthey differ about the REASON of this distinction. Some think this\ndistinction arises from the difficulty of discerning by night, whether\nan aggressor comes with an intent to murder or steal, and therefore\nhe ought to be treated as an assassin. Others think the distinction\nis made, because as it is difficult to know the person of the thief,\nthere is less probability of recovering the goods. In neither case\ndo the framers of laws seem to have considered the question in its\nproper light. Their evident intention is to prohibit the killing of\nany one, merely on account of our property; which would happen, for\ninstance, by killing a thief in his flight in order to recover the\ngoods he had stolen. But if our own lives are endangered, then we are\nallowed to avert the danger, even at the hazard of another's life.\nNor is our having run into the danger any objection; provided it was\ndone to preserve or to recover our goods, or to take the thief. For\nno imputation of guilt can attach to us in any of these cases, while\nwe are employed in doing a lawful act, nor can it be said that we are\ndoing wrong to another by exercising our own right.\n\nThe difference therefore made between a thief in the night and a thief\nin the day, arises from the difficulty of procuring sufficient evidence\nof the fact. So that if a thief is found killed, the person who says,\nthat he was found by him with a destructive weapon, and killed by\nhim in his own defence, will easily gain belief. For the Jewish law\nsupposes this, when it treats of a thief in the act of piercing, or,\nas some translate it, with a stabbing instrument. This interpretation\naccords with the law of the twelve tables, which forbids any one to\nkill a thief in the day time, except he defend himself with a weapon.\nThe presumption therefore against a thief in the night is that he\ndefended himself in such a manner. Now the term weapon comprehends not\nonly an instrument of iron, but as Caius interprets this law, a club,\nor a stone. Ulpian on the other hand, speaking of a thief taken in the\nnight, says that the person who kills him will incur no guilt, provided\nthat in saving his property he could not spare his life, without\nendangering his own. There is a presumption, as it has been already\nobserved, in favour of the person who has killed a thief taken in the\nnight. But if there be evidence to prove, that the life of the person\nwho killed the thief was in no danger; then the presumption in his\nfavour fails, and the act amounts to murder.\n\nThe law of the twelve tables indeed required, that the person who took\na thief either in the day time, or in the night, should make a noise\nthat, if possible, the magistrates or neighbours might assemble to\nassist him and give evidence. But as such a concourse could more easily\nbe assembled in the day time than in the night, as Ulpian observes\nupon the passage before quoted from Demosthenes, the affirmation of a\nperson declaring the danger he was in during the night is more readily\nbelieved. To which an additional observation may be made, that, even\nunder equal circumstances, the danger which happens by night can be\nless examined, and ascertained, and therefore is the more terrible.\nThe Jewish law therefore, no less than the Roman, acting upon the same\nprinciple of tenderness forbids us to kill any one, who has taken our\ngoods, unless for the preservation of our own lives.\n\nXVI.[16] What has been already said of the right of defending our\npersons and property, though regarding chiefly private war, may\nnevertheless be applied to public hostilities, allowing for the\ndifference of circumstances. For private war may be considered as an\ninstantaneous exercise of natural right, which ceases the moment that\nlegal redress can be obtained. Now as public war can never take place,\nbut where judicial remedies cease to exist, it is often protracted,\nand the spirit of hostility inflamed by the continued accession of\nlosses and injuries. Besides, private war extends only to self-defence,\nwhereas sovereign powers have a right not only to avert, but to punish\nwrongs. From whence they are authorised to prevent a remote as well as\nan immediate aggression. Though the suspicion of hostile intentions, on\nthe part of another power, may not justify the commencement of actual\nwar, yet it calls for measures of armed prevention, and will authorise\nindirect hostility. Points, which will be discussed in another place.\n\nXVII. Some writers have advanced a doctrine which can never be\nadmitted, maintaining that the law of nations authorises one power\nto commence hostilities against another, whose increasing greatness\nawakens her alarms. As a matter of expediency such a measure may be\nadopted, but the principles of justice can never be advanced in its\nfavour. The causes which entitle a war to the denomination of just are\nsomewhat different from those of expediency alone. But to maintain\nthat the bare probability of some remote, or future annoyance from a\nneighbouring state affords a just ground of hostile aggression, is a\ndoctrine repugnant to every principle of equity. Such however is the\ncondition of human life, that no full security can be enjoyed. The only\nprotection against uncertain fears must be sought, not from violence,\nbut from the divine providence, and defensive precaution.\n\nXVIII. There is another opinion, not more admissible, maintaining\nthat the hostile acts of an aggressor, may be considered in the light\nof defensive measures, because, say the advocates of this opinion, few\npeople are content to proportion their revenge to the injuries they\nhave received; bounds which in all probability the party aggrieved has\nexceeded, and therefore in return becomes himself the aggressor. Now\nthe excess of retaliation cannot, any more than the fear of uncertain\ndanger, give a colour of right to the first aggression, which may be\nillustrated by the case of a malefactor, who can have no right to wound\nor kill the officers of justice in their attempts to take him, urging\nas a plea that he feared the punishment would exceed the offense.\n\nThe first step, which an aggressor ought to take, should be an offer of\nindemnity to the injured party, by the arbitration of some independent\nand disinterested state. And if this mediation be rejected, then his\nwar assumes the character of a just war. Thus Hezekiah when he had not\nstood to the engagements made by his ancestors, being threatened with\nan attack from the King of Assyria on that account, acknowledged his\nfault, and left it to the King to assign what penalty he should pay\nfor the offence. After he had done so, finding himself again attacked,\nrelying on the justice of his cause, he opposed the enemy, and\nsucceeded by the favour of God. Pontius the Samnite, after restoration\nof the prizes had been made to the Romans, and the promoter of the war\ndelivered up into their hands, said, \"We have now averted the wrath of\nheaven, which our violation of treaties had provoked. But the supreme\nbeing who was pleased to reduce us to the necessity of restoration,\nwas not equally pleased with the pride of the Romans, who rejected our\noffer. What farther satisfaction do we owe to the Romans, or to Heaven,\nthe arbiter of treaties? We do not shrink from submitting the measure\nof YOUR resentment, or of OUR punishment to the judgment of any people,\nor any individual.\" In the same manner, when the Thebans had offered\nthe most equitable terms to the Lacedaemonians, who still rose higher\nin their demands, Aristides says, that the justice of the cause changed\nsides and passed from the Lacedaemonians to the Thebans.\n\n\n\n\nCHAPTER II.\n\nTHE GENERAL RIGHTS OF THINGS.\n\n The general rights of things--Division of what is our own--The origin\n and progress of property--Some things impossible to be made the\n subject of property--The Sea of this nature, in its full extent, or\n in its principal parts--Unoccupied lands may become the property\n of individuals, unless they have been previously occupied by\n the people at large--Wild beasts, fishes, birds, may become the\n property of him who seizes them--In cases of necessity men have\n a right of using that which has already become the property of\n others--To sanction this indulgence, the necessity must be such\n that it cannot otherwise be avoided--This indulgence not allowed\n where the possessor is in an equal degree of necessity--The\n party thus supplying his wants from another's property, bound\n to make restitution whenever it is possible. The application\n of this principle to the practice of war--The right to use the\n property of another, provided that use be no way prejudicial to\n the owner--Hence the right to the use of running water--The right\n of passing through countries, and by rivers explained--An inquiry\n into the right of imposing duties on merchandise--The right of\n residing for a time in a foreign state--The right of exiles to\n reside in the dominions of a foreign state, provided they submit\n to its laws--In what manner the right of occupying waste places is\n to be understood--The right to certain articles necessary to the\n support of human society, and life--The general right of purchasing\n those articles at a reasonable price--The right to sell, not of\n equal force and extent--The right to those privileges which are\n promiscuously granted to foreigners--Inquiry whether it be lawful\n to contract with any people for the purchase of their productions\n on condition of their not selling the same to others.\n\n\nI. Among the causes assigned to justify war, we may reckon the\ncommission of injury, particularly such as affects any thing which\nbelongs to us. Now we establish this claim to any thing as our own\neither by a right COMMON to us as men, or acquired by us in our\nINDIVIDUAL capacity. But to begin with that which is the common right\nof all mankind; we may observe that it comprises what is called by\nlegal authorities, Corporeal and Incorporeal rights.[17]\n\nThings corporeal are either unappropriated, or made the subjects of\nprivate property. Now the things unappropriated, are such that it\nmay be either possible or impossible for them to be reduced to a\nstate of private property.[18] In order therefore to understand this\nmore clearly, it will be necessary to take a survey of the origin of\nproperty.\n\nII. God gave to mankind in general, dominion over all the creatures\nof the earth, from the first creation of the world; a grant which\nwas renewed upon the restoration of the world after the deluge. All\nthings, as Justin says, formed a common stock for all mankind, as the\ninheritors of one general patrimony. From hence it happened, that\nevery man seized to his own use or consumption whatever he met with;\na general exercise of a right, which supplied the place of private\nproperty. So that to deprive any one of what he had thus seized, became\nan act of injustice. Which Cicero has explained in his third book, on\nthe bounds of good and evil, by comparing the world to a Theatre, in\nwhich the seats are common property, yet every spectator claims that\nwhich he occupies, for the time being, as his own. A state of affairs,\nwhich could not subsist but in the greatest simplicity of manners, and\nunder the mutual forbearance and good-will of mankind. An example of\na community of goods, arising from extreme simplicity of manners, may\nbe seen in some nations of America, who for many ages have subsisted\nin this manner without inconvenience. The Essenes of old, furnished an\nexample of men actuated by mutual affection and holding all things in\ncommon, a practice adopted by the primitive Christians at Jerusalem,\nand still prevailing among some of the religious orders. Man at his\nfirst origin, requiring no clothing, afforded a proof of the simplicity\nof manners in which he had been formed. Yet perhaps, as Justin says\nof the Scythians, he might be considered as ignorant of vice rather\nthan acquainted with virtue; Tacitus says, that in the early ages of\nthe world, men lived free from the influence of evil passions, without\nreproach, and wickedness; and consequently without the restraints of\npunishment. In primitive times there appeared among mankind, according\nto Macrobius, a simplicity, ignorant of evil, and inexperienced in\ncraft: a simplicity which in the book of Wisdom seems to be called\nintegrity, and by the Apostle Paul simplicity in opposition to\nsubtilty. Their sole employment was the worship of God, of which the\ntree of life was the symbol, as it is explained by the ancient Hebrews,\nwhose opinion is confirmed by the Book of Revelation.\n\nMen at that period subsisted upon the spontaneous productions of the\nground: a state of simplicity to which they did not long adhere, but\napplied themselves to the invention of various arts, indicated by the\ntree of knowledge of good and evil, that is the knowledge of those\nthings which may be either used properly, or abused; which Philo\ncalls a middle kind of wisdom. In this view, Solomon says, God hath\ncreated men upright, that is, in simplicity, but they have sought out\nmany inventions, or, in the language of Philo, they have inclined to\nsubtilty. In the sixth oration of Dion Prusaeensis it is said, \"the\ndescendants have degenerated from the innocence of primitive times,\ncontriving many subtile inventions no way conducive to the good of\nlife; and using their strength not to promote justice, but to gratify\ntheir appetites.\" Agriculture and pasturage seem to have been the\nmost ancient pursuits, which characterized the first brothers. Some\ndistribution of things would necessarily follow these different states;\nand we are informed by holy writ, that the rivalry thus created ended\nin murder. At length men increasing in wickedness by their evil\ncommunications with each other, the race of Giants, that is of strong\nand violent men appeared, whom the Greeks denominate by a title,\nsignifying those who make their own hands and strength the measure of\njustice.\n\nThe world in progress of time being cleared of this race by the deluge,\nthe savage was succeeded by a softer and more sensual way of life,\nto which the use of wine proved subservient, being followed by all\nthe evil consequences of intoxication. But the greatest breach in\nthe harmony of men was made by ambition, which is considered in some\nmeasure, as the offspring of a noble mind. Its first and most eminent\neffects appeared in the attempt to raise the tower of Babel; the\nfailure of which caused the dispersion of mankind, who took possession\nof different parts of the earth.\n\nStill after this a community of lands for pasture, though not of\nflocks, prevailed among men. For the great extent of land was\nsufficient for the use of all occupants, as yet but few in number,\nwithout their incommoding each other. In the words of the Poet, it was\ndeemed unlawful to fix a land mark on the plain, or to apportion it out\nin stated limits. But as men increased in numbers and their flocks in\nthe same proportion, they could no longer with convenience enjoy the\nuse of lands in common, and it became necessary to divide them into\nallotments for each family. Now in the hot countries of the East, wells\nwould be objects of great importance, for the refreshment of their\nherds and flocks; so that in order to avoid strife and inconvenience,\nall would be anxious to have them as possessions of their own. These\naccounts we derive from sacred history, and they are found to agree\nwith the opinions maintained upon this subject by Philosophers and\nPoets, who have described the community of goods, that prevailed in\nthe early state of the world, and the distribution of property which\nafterwards took place. Hence a notion may be formed of the reason\nwhy men departed from the primaeval state of holding all things in\ncommon, attaching the ideas of property, first to moveable and next to\nimmoveable things.\n\nWhen the inhabitants of the earth began to acquire a taste for more\ndelicate fare than the spontaneous productions of the ground, and to\nlook for more commodious habitations than caves, or the hollow of\ntrees, and to long for more elegant cloathing than the skins of wild\nbeasts, industry became necessary to supply those wants, and each\nindividual began to apply his attention to some particular art. The\ndistance of the places too, into which men were dispersed, prevented\nthem from carrying the fruits of the earth to a common stock, and in\nthe next place, the WANT of just principle and equitable kindness would\ndestroy that equality which ought to subsist both in the labour of\nproducing and consuming the necessaries of life.\n\nAt the same time, we learn how things passed from being held in common\nto a state of property. It was not by the act of the mind alone that\nthis change took place. For men in that case could never know, what\nothers intended to appropriate to their own use, so as to exclude\nthe claim of every other pretender to the same; and many too might\ndesire to possess the same thing. Property therefore must have been\nestablished either by express agreement, as by division, or by tacit\nconsent, as by occupancy. For as soon as it was found inconvenient\nto hold things in common, before any division of lands had been\nestablished, it is natural to suppose it must have been generally\nagreed, that whatever any one had occupied should be accounted his own.\nCicero, in the third book of his Offices says, it is admitted as an\nuniversal maxim, not repugnant to the principles of natural law, that\nevery one should rather wish himself to enjoy the necessaries of life,\nthan leave them for the acquisition of another. Which is supported by\nQuintilian, who says, if the condition of life be such, that whatever\nhas fallen to the private use of any individual, becomes the property\nof such holder, it is evidently unjust to take away any thing which\nis possessed by such a right. And the ancients in styling Ceres a\nlaw-giver, and giving the name of Thesmophoria to her sacred rights,\nmeant by this to signify that the division of lands had given birth to\na new kind of right.\n\nIII. Notwithstanding the statements above made, it must be admitted\nthat some things are impossible to be reduced to a state of property,\nof which the Sea affords us an instance both in its general extent,\nand in its principal branches. But as some are willing to make this\nconcession with regard to individuals, but not with regard to nations,\nthe position advanced in the beginning of this section may be proved\nfrom the following moral argument, that as in this case the reason no\nlonger subsists why men should hold all things in common, the practice\nceases also. For the magnitude of the sea is such, as to be sufficient\nfor the use of all nations, to allow them without inconvenience and\nprejudice to each other the right of fishing, sailing, or any other\nadvantage which that element affords. The same may be said of air as\ncommon property, except that no one can use or enjoy it, without at\nthe same time using the ground over which it passes or rests. So that\nthe amusement of fowling cannot be followed, except by permission,\nwithout trespassing upon the lands of some owner, over which the birds\nfly.\n\nThe same appellation of COMMON may be given to the sand of the shore,\nwhich being incapable of cultivation, is left free to yield its\ninexhaustible supplies for the use of all.\n\nThere is a natural reason also, which renders the sea, considered in\nthe view already taken, incapable of being made property: because\noccupancy can never subsist, but in things that can be confined to\ncertain permanent bounds. From whence Thucydides gives the name of\ninfinite space to unoccupied lands, and Isocrates speaking of that\noccupied by the Athenians calls it that which has been measured by us\ninto alloted parts. But fluids, which cannot be limited or restrained,\nexcept they be contained within some other substance, cannot be\noccupied. Thus ponds, and lakes and rivers likewise, can only be made\nproperty as far as they are confined within certain banks. But the\nocean as it is equal to, or larger than the earth, cannot be confined\nwithin the land: so that the ancients said the earth was bounded in by\nthe sea like a girdle surrounding it. Nor can any imaginable division\nof it have been originally framed. For as the greatest part of it was\nunknown, it was impossible that nations far removed from each other\ncould agree upon the bounds to be assigned to different parts.\n\nWhatever therefore was the common property of all, and after a general\ndivision of all other things, retained its original state, could\nnot be appropriated by division, but by occupancy. And the marks of\ndistinction and separation by which its different parts were known,\nfollowed such appropriation.\n\nIV. The next matters to be noticed are those things, which though\nnot yet made property, may be reduced to that condition. Under this\ndescription come waste lands, desert islands, wild beasts, fishes, and\nbirds. Now in these cases there are two things to be pointed out, which\nare a double kind of occupancy that may take place; the one in the\nname of the Sovereign, or of a whole people, the other by individuals,\nconverting into private estates the lands which they have so occupied.\nThe latter kind of individual property proceeds rather from assignment\nthan from free occupancy. Yet any places that have been taken\npossession of in the name of a sovereign, or of a whole people, though\nnot portioned out amongst individuals, are not to be considered as\nwaste lands, but as the property of the first occupier, whether it be\nthe King, or a whole people. Of this description are rivers, lakes,\nforests, and wild mountains.\n\nV. As to wild beasts, fishes, and birds, it is to be observed that the\nsovereign of the respective lands, or waters where they are found,\nhas a legal right to prohibit any one from taking them, and thereby\nacquiring a property in them. A prohibition extending to foreigners,\nas well as subjects. To foreigners; because by all the rules of moral\nlaw they owe obedience to the sovereign, for the time during which they\nreside in his territories. Nor is there any validity in the objection\nfounded on the Roman Law, the Law of nature, or the Law of nations,\nwhich, it is said, declare such animals to be beasts of chace free to\nevery one's hunting. For this is only true, where there is no civil\nlaw to interpose its prohibition; as the Roman law left many things in\ntheir primitive state, which by other nations were placed upon a very\ndifferent footing. The deviations therefore from the state of nature,\nwhich have been established by the civil law, are ordained by every\nprinciple of natural justice to be obeyed by mankind. For although the\ncivil law can enjoin nothing which the law of nature prohibits, nor\nprohibit any thing which it enjoins, yet it may circumscribe natural\nliberty, restraining what was before allowed; although the restraint\nshould extend to the very acquisition of property, to which every man\nAT FIRST had a right by the law of nature.\n\nVI. The next thing to be considered is the right, which men have to\nthe common use of things, already appropriated; terms, in which at the\nfirst sight there appears to be some inconsistency, as it appears that\nthe establishment of property has absorbed every right that sprung from\na state of things held in common. But this is by no means the case. For\nthe intention of those, who first introduce private property, must be\ntaken into the account. And it was but reasonable to suppose, that in\nmaking this introduction of property, they would depart as little as\npossible from the original principles of natural equity. For if written\nlaws are to be construed in a sense, approaching as nearly as possible\nto the laws of nature, much more so are those customs which are not\nfettered with the literal restrictions of written maxims. From hence it\nfollows that in cases of extreme necessity, the original right of using\nthings, as if they had remained in common, must be revived; because in\nall human laws, and consequently in the laws relating to property, the\ncase of extreme necessity seems to form an exception.\n\nUpon this principle is built the maxim that if in a voyage provisions\nbegin to fail, the stock of every individual ought to be produced for\ncommon consumption; for the same reason a neighbouring house may be\npulled down to stop the progress of a fire: or the cables or nets,\nin which a ship is entangled, may be cut, if it cannot otherwise be\ndisengaged. Maxims, none of which were introduced by the civil law, but\nonly explained by it according to the rules of natural equity.\n\nNow among Theologians also it is a received opinion, that if in urgent\ndistress, any one shall take from another what is absolutely necessary\nfor the preservation of his own life, the act shall not be deemed a\ntheft. A rule not founded, as some allege, solely upon the law of\ncharity, which obliges every possessor to apply some part of his wealth\nto relieve the needy; but upon the original division of lands among\nprivate owners, which was made with a reservation in favour of the\nprimitive rights of nature. For if those who at first made the division\nhad been asked their opinion upon this point, they would have given the\nsame reason that has just been advanced. Necessity, says Seneca, the\ngreat protectress of human infirmity breaks through all human laws,\nand all those made in the spirit of human regulations. Cicero in his\neleventh Philippic, says, that Cassius went into Syria, which might be\nconsidered as another's province, if men adhered to written laws, but\nif these were abolished, it would be considered as his own by the law\nof nature. In the sixth book and fourth chapter of Quintus Curtius,\nwe find an observation, that in a common calamity every man looks to\nhimself.\n\nVII. Now this indulgence must be granted with precautions and\nrestrictions, to prevent it from degenerating into licentiousness. And\nof these precautions, the first requires the distressed party to try\nevery mode of obtaining relief, by an appeal to a magistrate, or by\ntrying the effect of entreaty to prevail upon the owner to grant what\nis necessary for his pressing occasions. Plato allows any one to seek\nwater from his neighbour's well, after having dug to a certain depth in\nhis own without effect. Solon limits the depth to forty cubits; upon\nwhich Plutarch remarks, that he intended by this to relieve necessity\nand difficulty, but not to encourage sloth. Xenophon in his answer to\nthe Sinopians, in the fifth book of the expedition of Cyrus, says,\n\"wherever we come, whether into a barbarous country or into any part of\nGreece, and find the people unwilling to afford us supplies, we take\nthem, not through motives of wantonness, but from the compulsion of\nnecessity.\"\n\nVIII. In the next place this plea of necessity cannot be admitted,\nwhere the possessor is in an equal state of necessity himself. For\nunder equal circumstances the owner has a better right to the use of\nhis possessions. Though Lactantius maintains that it is no mark of\nfolly to forbear thrusting another from the same plank in a shipwreck\nin order to save yourself. Because you have thereby avoided hurting\nanother: a sin which is certainly a proof of wisdom to abstain from.\nCicero, in the third book of his offices, asks this question, if a wise\nman, in danger of perishing with hunger, has not a right to take the\nprovisions of another, who is good for nothing? To which he replies; By\nno means. For no one's life can be of such importance as to authorize\nthe violation of that general rule of forbearance, by which the peace\nand safety of every individual are secured.\n\nIX. In the third place, the party thus supplying his wants from\nthe property of another, is bound to make restitution, or give an\nequivalent to the owner, whenever that is possible. There are some\nindeed, who deny this, upon the ground that no one is bound to give an\nindemnity for having exercised his own right. But strictly speaking,\nit was not a full and perfect right, which he exercised; but a kind of\npermission, arising out of a case of necessity, and existing no longer\nthan while the necessity continued. For such a permissive right is only\ngranted in order to preserve natural equity in opposition to the strict\nand churlish rigour of exclusive ownership.\n\nX. Hence it may be inferred, that, in the prosecution of a just war,\nany power has a right to take possession of a neutral soil; if there be\nreal grounds, and not imaginary fears for supposing the enemy intends\nto make himself master of the same, especially if the enemy's occupying\nit would be attended with imminent and irreparable mischief to that\nsame power. But in this case the restriction is applied that nothing be\ntaken but what is actually necessary to such precaution and security.\nBarely occupying the place is all that can be justified: leaving to\nthe real owner the full enjoyment of all his rights, immunities, and\njurisdiction, and all the productions of his soil. And this must be\ndone too with the full intention of restoring the place to its lawful\nSovereign, whenever the necessity, for which it was occupied, may\ncease. The retaining of Enna, Livy says, was either an act of violence,\nor a necessary measure; by violence meaning the least departure from\nnecessity. The Greeks, who were with Xenophon being in great want of\nships, by Xenophon's own advice, seized upon those that were passing,\nstill preserving the property untouched for the owners, supplying the\nsailors with provisions, and paying them wages. The principal right\ntherefore, founded upon the original community of goods, remaining\nsince the introduction of property, is that of necessity, which has\njust been discussed.\n\nXI. There is another right, which is that of making use of the property\nof another, where such use is attended with no prejudice to the owner.\nFor why, says Cicero, should not any one, when he can do it without\ninjury to himself, allow another to share with him those advantages,\nwhich are useful to the receiver, and no way detrimental to the giver?\nSeneca therefore observes, that it is no favour to allow another to\nlight his fire from your flame. And in the 7th book of Plutarch's\nSymposiacs, we find an observation, that when we have provisions more\nthan sufficient for our own consumption it is wicked to destroy the\nremainder; or after supplying our own wants, to obstruct or destroy the\nsprings of water; or after having finished our voyage, not to leave\nfor other passengers the sea-marks, that have enabled us to steer our\ncourse.\n\nXII. Upon the principles already established, a river, as such, is the\nproperty of that people, or of the sovereign of that people, through\nwhose territories it flows. He may form quays, and buttresses upon that\nriver, and to him all the produce of it belongs. But the same river,\nas a running water, still remains common to all to draw or drink it.\nOvid introduces Latona thus addressing the Lydians, \"Why do you refuse\nwater, the use of which is common?\" where he calls water a public gift\nthat is common to men, taking the word public in a more general sense\nthan as applied to any PEOPLE, a meaning in which some things are said\nto be public by the law of nations. And in the same sense Virgil has\nasserted water to be free and open to all men.\n\nXIII. It is upon the same foundation of common right, that a free\npassage through countries, rivers, or over any part of the sea, which\nbelongs to some particular people, ought to be allowed to those, who\nrequire it for the necessary occasions of life; whether those occasions\nbe in quest of settlements, after being driven from their own country,\nor to trade with a remote nation, or to recover by just war their lost\npossessions. The same reason prevails here as in the cases above named.\nBecause property was originally introduced with a reservation of that\nuse, which might be of general benefit, and not prejudicial to the\ninterest of the owner: an intention evidently entertained by those,\nwho first devised the separation of the bounteous gifts of the creator\ninto private possessions. There is a remarkable instance of this in the\nMosaic history, when the leader of the children of Israel required a\nfree passage for that people, promising to the King of Edom, and to the\nKing of the Amorites, that he would go by the highway, without setting\na foot upon the soil of private possessions, and that the people should\npay the price of everything, which they might have occasion to use.\nUpon these equitable terms being rejected, Moses was justified in\nmaking war upon the Amorites. Because, says Augustin, an inoffensive\npassage, a right interwoven with the very frame of human society, was\nrefused. The Greeks under the command of Clearchus, said, \"we are upon\nthe way to our home, if no one interrupt us; but every attempt to\nmolest us, we are, with the assistance of heaven, determined to avenge.\"\n\nNot unlike this answer of the soldiers under Clearchus is the question\nput to the different nations of Thrace by Agesilaus, who desired to\nknow whether they wished him to pass through their country as a friend,\nor as an enemy. When the Boeotians hesitated upon some propositions\nmade to them by Lysander, he asked them whether they intended that he\nshould pass with erected or inclined spears, meaning by the expression\nin a hostile or a quiet manner. We are informed by Tacitus, that the\nBatavians, as soon as they came near the camp at Bonn, sent a message\nto Herennius Gallus, importing that \"they had no hostile design; that\nif not obstructed, they would march in a peaceable manner; but if they\nmet with opposition they would cut their way sword in hand.\" When\nCimon in carrying supplies to the Lacedaemonians, had marched with his\ntroops through some part of the Corinthian district, the Corinthians\nexpostulated upon his conduct as a violation of their territory,\nbecause he had done it without asking their leave, at the same time\nobserving, that no one knocks at another man's door, or presumes to\nenter the house without obtaining the master's leave. To whom he\nreplied, you never knocked at the gates of Cleone and Megara, but broke\nthem down, believing, I suppose, that no right ought to withstand the\nforce of the mighty.\n\nNow between these two extremes there is a middle course, requiring a\nfree passage to be first asked; the refusal of which will justify the\napplication of force. Thus Agesilaus in his return from Asia when he\nhad asked a passage of the King of the Macedonians, who answered that\nhe would consider of it, said, you may consider, if you please, but we\nshall pass in the mean time.\n\nThe fears, which any power entertains from a multitude in arms passing\nthrough its territories, do not form such an exception as can do away\nthe rule already laid down. For it is not proper or reasonable that the\nfears of one party should destroy the rights of another. Especially,\nas necessary precautions and securities may be used, such as those,\nfor instance, of requiring that the troops shall pass without arms, or\nin small bodies; a promise which the Agrippinians made to the Germans.\nAnd, as we are informed by Strabo, the practice still prevails in the\ncountry of the Eleans. Another security may be found in providing\ngarrisons at the expense of the party, to whom the passage is granted;\nor in giving hostages; the condition, which Seleucus demanded of\nDemetrius, for permitting him to remain within his territories. Nor\nis the fear of offending that power, which is the object of attack, a\nsufficient pretext for refusing the passage of the troops to the state\nthat is engaged in a just war. Nor is it a proper reason to assign for\na refusal, to say that another passage may be found; as every other\npower might allege the same, and by this means the right of passage\nwould be entirely defeated. The request of a passage therefore, by the\nnearest and most commodious way, without doing injury and mischief, is\na sufficient ground upon which it should be granted. It alters the case\nentirely, if the party making the request is engaged in unjust war,\nand is marching with the troops of a power hostile to the sovereign of\nthat territory; for in this instance, a passage may be refused. For the\nsovereign has a right to attack that power in his own territory, and to\noppose its march.\n\nNow a free passage ought to be allowed not only to persons, but to\nmerchandise. For no power has a right to prevent one nation from\ntrading with another at a remote distance; a permission which for the\ninterest of society should be maintained. Nor can it be said that any\none is injured by it. For though he may be thereby deprived of an\nexclusive gain, yet the loss of what is not his due, as a MATTER OF\nRIGHT, can never be considered as a damage or the violation of a claim.\n\nXIV. But it will form a subject of inquiry, whether the sovereign of\nthe country has a right to impose duties on goods carried by land, or\nupon a river or upon any part of the sea, which may form an accession\nto his dominions. It would undoubtedly be unjust for any burdens\nforeign to the nature of trade to be imposed upon such goods. Thus\nstrangers merely passing through a country would have no right to pay\na poll-tax, imposed to support the exigencies of the state. But if the\nsovereign incurs expence by providing security and protection to trade,\nhe has a right to reimburse himself by the imposition of moderate and\nreasonable duties. It is the REASONABLENESS of them, which constitutes\nthe justice of customs and taxes. Thus Solomon received tolls for\nhorses and linen that passed over the Isthmus of Syria. Pliny,\nspeaking of frankincense, observes that as it could not be transported\nbut by the Gebanites, a duty upon it was paid to their king. In the\nsame manner, as Strabo informs us in his fourth book, the people of\nMarseilles derived great wealth from the canal which Marius had made\nfrom the Rhone to the sea, by exacting tribute of all that sailed upon\nit to and fro with vessels. In the eighth book of the same writer, we\nare told that the Corinthians imposed a duty upon all goods, which, to\navoid the dangerous passage of Cape Malea, were transported by land\nfrom sea to sea. The Romans too made the passage of the Rhine a source\nof tribute, and Seneca relates that a toll was paid for going over\nbridges. The works of legal writers abound in instances of this kind.\nBut it frequently happens that extortion is practised in these matters,\nwhich Strabo forms into a subject of complaint against chiefs of the\nArabian tribes, concluding that it would be unlikely for men of that\nlawless kind to impose upon the goods of merchants any duties that were\nnot oppressive.\n\nXV. Those going with merchandise or only passing through a country,\nought to be allowed to reside there for a time, if the recovery of\nhealth, or any other just cause should render such residence necessary.\nFor these may be reckoned among the innocent uses of our right.\nThus Ilioneus in Virgil calls heaven to witness the injustice of\nthe Africans in driving him and his shipwrecked companions from the\nhospitable use of the shore, and we are informed by Plutarch in his\nlife of Pericles that all the Grecians approved of the complaint, which\nthe Megarensians made against the Athenians, who had prohibited them\nfrom setting foot upon the soil of their territories, or carrying a\nvessel into their harbours. So the Lacedaemonians regarded this as the\nmost sufficient grounds to justify the war.\n\nFrom hence results the right of erecting a temporary hut, upon the\nshore, although, for instance, the same shore is allowed to be the\nproperty of the people of that place. For what Pomponius says of its\nbeing necessary to obtain the Praetor's leave, before a building can\nbe raised upon the public shore, relates to structures of a permanent\nkind, when the massy piles of stone, as the Poet says, encroach upon\nthe sea, and the affrighted fish feel their waves contracted.\n\nXVI. Nor ought a permanent residence to be refused to foreigners, who,\ndriven from their own country, seek a place or refuge. But then it is\nonly upon condition that they submit to the established laws of the\nplace, and avoid every occasion of exciting tumult and sedition. A\nreasonable rule, which the divine poet has observed, when he introduces\nAeneas making an offer that Latinus, who had become his father-in-law,\nshould retain all military and civil power. And in Dionysius of\nHalicarnassus, Latinus admits the proposal of Aeneas to be just; as\nhe came through necessity in quest of a settlement. To drive away\nrefugees, says Strabo, from Eratosthenes, is acting like barbarians;\nand a conduct like this in the Spartans was also condemned. St.\nAmbrose passes the same sentence of condemnation upon those powers, who\nrefuse all admission to strangers. Yet settlers of this description\nhave no right to demand a share in the government. A proposal of this\nkind made by the Minyae to the Lacedaemonians, who had received them,\nis very properly considered by Herodotus as insolent, and unreasonable.\n\nXVII. It is indeed but an act of common humanity in a sovereign to\nallow strangers, at their request, liberty to fix their residence upon\nany waste or barren lands within his dominions, still reserving to\nhimself all the rights of sovereignty. Seven hundred acres of barren\nand uncultivated land, as Servius observes, were given by the native\nLatins to the Trojans. Dion Prusaeensis, in his seventh oration, says,\nthat they commit no crime of trespass, who take upon them to cultivate\nwaste lands. The refusal of this privilege made the Ansibarians\nexclaim, \"the firmament over our heads is the mansion of the deity: the\nearth was given to man; and what remains unoccupied, lies in common\nto all.\" Yet that complaint did not apply exactly to their case. For\nthose lands could not be called unoccupied, as they served to supply\nthe Roman army with forage for their cattle, which certainly furnished\nthe Romans with a just pretext for refusing to grant their request. And\nwith no less propriety the Romans asked the Galli Senones if it were\nright to demand lands already possessed, and to threaten to take them\nby force.\n\nXVIII. Since the COMMON RIGHT TO THINGS has been established, the\nCOMMON RIGHT TO ACTIONS follows next in order, and this right is either\nabsolute, or established by the supposition of a general agreement\namongst mankind. Now all men have absolutely a right to do such or\nsuch acts as are necessary to provide whatever is essential to the\nexistence or convenience of life. CONVENIENCE is included in this\nright; for there is no occasion here to imagine an existence of the\nsame necessity as was requisite to authorize the seizing of another's\nproperty. Because the point of discussion here is not whether any act\nis done AGAINST THE WILL of an owner, but whether we acquire what is\nnecessary for our wants ACCORDING TO THE TERMS to which the owner has\nagreed.[19] Supposing there is nothing illegal in the contract, nor\nany wilful intention on his part to make it null and void. For any\nimpediment created by the owner in such transactions, is repugnant\nto the very principles of natural justice, which suppose an equality\nof upright dealing to subsist in both the parties concerned. St.\nAmbrose calls a fraudulent conduct of that kind, an attempt to deprive\nmen of their share in the goods of a common parent, to withhold the\nproductions of nature which are the birthright of all, and to destroy\nthat commerce which is the very support of life. For we are not\ntreating of superfluities and luxuries, but of those things, which are\nessential to life, as physic, food and cloathing.\n\nXIX. From what has already been proved, it follows that all men have a\nright to purchase the necessaries of life at a reasonable price, except\nthe owners want them for their own use. Thus in a great scarcity of\ncorn, there would be no injustice in their refusing to sell. And yet\nin such a time of necessity foreigners, who have been once admitted,\ncannot be driven away; but as St. Ambrose shews in the passage already\nquoted, a common evil must be borne by all alike.\n\nXX. Now owners have not the same right in the sale of their goods: for\nothers are at full liberty to determine whether they will purchase\ncertain articles or not. The ancient Belgians, for instance, allowed\nnot wines and other foreign merchandise to be imported among them. The\nsame rule, we are informed by Strabo, was practised by the Nabathaean\nArabians.\n\nXXI. It is supposed to be generally agreed among mankind, that the\nprivileges, which any nation grants promiscuously to the subjects\nof foreign powers or countries, are the common right of all.[20]\nConsequently the exclusion of any one people from these rights would\nbe considered as an injury to that people. Thus, wherever foreigners\nin general are allowed to hunt, to fish, to shoot, to gather pearls,\nto succeed to property by testament, to sell commodities, or to form\nintermarriages, the same privileges cannot be refused to any particular\npeople, unless they have by misconduct forfeited their right. On which\naccount the tribe of Benjamin was debarred from intermarrying with\nother tribes.\n\nXXII. It has sometimes been a subject of inquiry whether one nation\nmay lawfully agree with another to exclude all nations but herself\nfrom purchasing certain productions, which are the peculiar growth of\nher soil. An agreement which, it is evident, may be lawfully made; if\nthe purchaser intends to supply other nations with those articles at a\nreasonable price. For it is a matter of indifference to other nations\nOF WHOM they purchase, provided they can have a reasonable supply for\ntheir wants. Nor is there any thing unlawful in allowing one people\nan advantage over another in this respect, particularly for a nation\nwho has taken another under her protection and incurred expence on\nthat account. Now such a monopoly, under the circumstances already\nmentioned, is no way repugnant to the law of nature,[21] though it\nmay be sometimes for the interest of the community to prohibit it by\nexpress laws.\n\n\n\n\nCHAPTER III.\n\nON THE ORIGINAL ACQUISITION OF THINGS, AND THE RIGHT OF PROPERTY IN\nSEAS AND RIVERS.\n\n Specification of moveable property--The difference between\n sovereignty and property--The right to moveables by occupancy may\n be superseded by law--Rivers may be occupied--Right to seas--On the\n treaties binding a people not to navigate the seas beyond certain\n bounds--Inquiry into the nature of the change which a river,\n changing its course, makes in the adjoining territories--What\n determination is to be made, where the river has entirely\n changed its channel--Sometimes a whole river may accrue to a\n territory--Things deserted belong to the first occupier.\n\n\nI. Among the means of acquiring property, Paulus the Lawyer reckons\none, which seems most natural, and that is, if by the ingenuity of\nart, or the exertions of labour we have given to any production its\nexistence among the works of man. Now as nothing can naturally be\nproduced, except from some materials before in existence, it follows\nthat, if those materials were our own, the possession of them under any\nnew shape, or commodity is only a CONTINUATION of our former property;\nif they belonged to no one, our possession comes under the class of\ntitle by occupancy: but if they were another's, no improvement of ours\ncan by the law of nature give us a right of property therein.\n\nII. Among those things, which belong to no one, there are two that\nmay become the subjects of occupancy; and those are jurisdiction, or\nsovereignty and property. For jurisdiction and property are distinct\nfrom each other in their effects. The objects over which sovereignty\nmay be exercised are of a twofold description, embracing both persons\nand things. But this is not the case with property, the right of which\ncan extend only to the irrational and inanimate part of the creation.\nThough it might originally, for the most part, be the same act by which\nsovereignty and property were acquired, yet they are in their nature\ndistinct. SOVEREIGNTY, says Seneca, belongs to PRINCES and PROPERTY\nto INDIVIDUALS. The sovereignty therefore, not only over subjects at\nhome, but over those in the prince's foreign dominions passes with the\nhereditary descent of the crown.\n\nIII. In places, where sovereignty is already established, the right to\nmoveables by occupancy, and indeed every original right must give way\nto the superior sanction of law. And what any man before held by any\nsuch right, he would afterwards be considered as holding by the laws of\nthe country. For those original rights were PERMISSIONS of the law of\nnature, and not commands that were to be PERPETUALLY enforced. For the\ncontinued establishment of such a right as that by prior occupancy, so\nfar from promoting the welfare, would operate to the very destruction\nof human society. Although it may be said by way of objection, that\nthe law of nations seems to admit of such a right, yet we may answer\nthat if such a rule either is or has been commonly received in any part\nof the world, it has not the force of a general compact binding upon\ndifferent independent nations; but may be considered as one branch of\nthe civil law of many nations, which any state has a right to continue,\nor repeal according to its own pleasure or discretion. There are many\nother things indeed which legal writers, in treating of the division\nand acquisition of property, consider as forming a part of the law of\nnations.\n\nIV. Rivers may be occupied by a country, not including the stream\nabove, nor that below its own territories. But the waters which wash\nits lands form an inseparable part of the current, making its way\nto the main sea. For to constitute the right to a property in its\nchannel, it is sufficient that its sides, inclosed by the banks of that\nterritory form its greatest part, and that the river itself compared\nwith the land, makes but a small portion.\n\nV. In the same manner, the sea appears capable of being made a property\nby the power possessed of the shore on both sides of it; although\nbeyond those limits it may spread to a wide extent, which is the case\nwith a bay, and with a straight beyond each of its outlets into main\nsea or ocean. But this right of property can never take place where\nthe sea is of such a magnitude, as to surpass all comparison with that\nportion of the land which it washes. And the right, which one people or\nprince possesses, may also be shared by a great number of states, among\nwhose respective territories the sea flows. Thus rivers separating\ntwo powers may be occupied by both, to each of whom their use and\nadvantages may be equal.\n\nVI. Instances may be found of treaties by which one nation binds itself\nto another, not to navigate particular seas beyond certain bounds.\nThus between the Egyptians and the Princes inhabiting the borders of\nthe Red Sea, it was agreed, in ancient times, that the former should\nnot enter that sea with any ship of war, nor with more than one\nmerchant ship. In the same manner, in the time of Cimon, the Persians\nwere bound by a treaty, made with the Athenians, not to sail with any\nship of war between the Cyanean rocks and the Chelidonian islands; a\nprohibition, which, after the battle of Salamis, restricted any Persian\narmed vessel from sailing between Phaselis and the above named rocks.\nIn the one year's truce of the Peloponnesian war, the Lacedaemonians\nwere prohibited from sailing with any ships of war whatever, or indeed\nwith any other ships of more than twenty tons burden. And in the first\ntreaty, which the Romans, immediately after the expulsion of their\nkings, made with the Carthaginians, it was stipulated that neither the\nRomans, nor their allies should sail beyond the promontory of Pulchrum,\nexcept they were driven thither by stress of weather, or to avoid being\ncaptured by an enemy. But in either case they were to take nothing more\nthan necessaries, and to depart before the expiration of five days. And\nin the second treaty, the Romans were prohibited from committing any\nacts of piracy, or even from trading beyond the promontory of Pulchrum,\nMassia and Tarseius.\n\nIn a treaty of peace between the Illyrians and Romans, the latter\nrequired that they should not pass beyond the Lissus with more than two\nfrigates, and those unarmed. In the peace with Antiochus, he was bound\nnot to sail within the capes of Calycadnius and Sarpedon, except with\nships carrying tribute, ambassadors, or hostages. Now the instances\nalluded to do not prove the actual occupancy of the sea, or the right\nof navigation. For it may happen that both individuals and nations\nmay grant as a matter of favour or compact, not only what they have\na competent right to dispose of, but that which is the common right\nof all men as well as of themselves. When this happens, we may say\nas Ulpian did on a like occasion, where an estate had been sold with\na reservation, that the purchaser should not fish for Tunny to the\nprejudice of the seller. He observed that the sea could not be rendered\nsubject to a service, but still the purchaser and those who succeeded\nto his possession, were bound in honour to observe that part of the\ncontract.\n\nVII. Whenever a river has changed its course, disputes have arisen\nbetween neighboring states to decide whether such an alteration creates\nany change in the adjoining territories, and to whom any addition of\nland occasioned by that change accrues. Disputes which must be settled\naccording to the nature and manner of such acquisition. Writers,\nwho have treated of the division of land, have described it as of\na threefold nature: one kind they name DIVIDED and ASSIGNED land,\nwhich Frontinus the Lawyer calls LIMITED, because it is marked out\nby artificial boundaries. By land ASSIGNED, is meant that which has\nbeen appropriated to a whole community, comprehending a certain number\nof families; a hundred for instance: from whence it has derived that\nname. And those portions are called hundreds. There is another division\ncalled ARCIFINIUM, which is applied when the land is defended against\nan enemy by the natural boundaries of rivers or mountains. These lands\nAggenus Urbicus calls OCCUPATORY, being such as have been occupied\neither by reason of their being vacant, or by the power of conquest. In\nthe two first kinds of lands, because their extent and bounds are fixed\nand determined, though a river should change its course, it occasions\nno change of territory, and what is added by alluvion will belong to\nthe former occupant.\n\nIn arcifinious lands, where the bounds are formed by nature, any\ngradual change in the course of the river makes a change also in the\nboundaries of territory, and whatever accession is given by the river\nto one side, it will belong to the possessor of the land on that side.\nBecause the respective nations are supposed originally to have taken\npossession of those lands, with an intention of making the MIDDLE of\nthat river, as a natural boundary, the line of separation between\nthem. Thus Tacitus in speaking of the Usipians and Tencterians, who\nborder on the Cattians, says, \"their territory lies on the banks of the\nRhine, where that river, still flowing in one regular channel, forms a\nsufficient boundary.\"\n\nVIII. Decisions like those above can only take place in instances,\nwhere the river has not altered its channel. For a river, dividing\nterritories, is not to be considered barely as so much water, but as\nwater flowing in a PARTICULAR CHANNEL, and inclosed WITHIN CERTAIN\nBANKS. For which reason an addition, a decrease, or such a change of\nsmall portions, as leaves the ancient appearance, upon the whole,\nnearly the same, allows us to consider the river as still the same. But\nif the whole face of the river is changed, the case will be entirely\naltered. For as a river may be entirely destroyed by the erection of\ndams upon the higher parts of its stream, or by digging canals, which\ncarry off its waters in another direction: so by the desertion of its\nold channel, and breaking out for itself another course, it will not\ncontinue to be same river it was before, but will be completely a new\none. In the same manner if a river has been dried up, the middle of its\nchannel will remain as the boundary between neighbouring states, who\nin taking possession of the neighbouring territory originally intended\nthe middle of such a river to be the line of separation, and under all\nchanges to preserve the same as a permanent limit. But in doubtful\ncases, the territories bordering upon a river ought to be considered\nas arcifinious, because nothing can be a more apt mark of distinction\nthan those impassable bounds assigned by nature. It very seldom indeed\nhappens, that the artificial or civil admeasurements of territory can\nbe regulated by such natural bounds, as they are, in general, the\neffect of original acquisition, or have been ceded by treaty.\n\nIX. Although in doubtful cases, it has been said that the territories\non each side of a river are determined by the middle of the channel;\nyet it may happen, and has happened, that the sole right to a river\nmay belong to the territories on one side of it. Because that on the\nopposite side was of later occupancy, and subsequent to the possession\nof that river by the other power: or because this sole right may have\nbeen so settled by treaty.\n\nX. It is not unworthy of observation that things which have had an\nowner, but have ceased to have one, become subject to the right by\noriginal acquisition. They are supposed to have been abandoned from the\nwant of an owner, and therefore have returned to the original state\nof common stock. But at the same time it is proper to observe, that\nsome times the original acquisition may have been made by a people or\ntheir sovereign, in such a manner as to give them or him not only those\npre-eminent rights which constitute prerogative, but also the full\ntitle of property.\n\nAnd this property again may be divided into smaller grants, and those\nagain subdivided into other portions, to be held as dependent upon the\noriginal grantor, the Sovereign, or the Lord. Though the land may not\nbe held by base service, or vassalage, yet it is possessed by some\nconditional tenure. For things are occupied by many kinds of right;\namong which may be reckoned the right of a person who expects property\nto be left to him under the condition of a trust. Seneca says, that an\nowner's being debarred from selling his lands, committing waste upon\nthem, or even making improvements, is not to be taken as a proof that\nthe property is not his. For that is a man's own, which he holds under\nany certain conditions. Since then property distributed in the manner\nabove named is held of the sovereign, or of some intermediate Lord, who\nhimself is tenant of the sovereign, it follows that any thing which\nwants an owner does not become the property of him, who can first seize\nit, but reverts to the state or to the sovereign.\n\n[Illustration: _WAR_\n\n_By Gari Melchers--From a panel painting in Library of Congress._]\n\n\n\n\nCHAPTER IV.\n\nTITLE TO DESERT LAND BY OCCUPANCY, POSSESSION, AND PRESCRIPTION.\n\n Why Usucaption or Prescription cannot subsist between independent\n States, and Sovereigns--Long possession alleged as a ground\n of right--Inquiry into the intentions of men, which are not\n to be judged of by words alone--Intention to be judged of by\n acts--Intentions also to be judged of by omissions--How far length\n of time, silence, and non-possession, may confirm the conjecture of\n an abandoned right--Time immemorial generally thought to bar any\n claim--What constitutes time immemorial--Objections to a presumed\n desertion of property, considered without any conjecture, time\n immemorial appears to transfer and constitute a property--Inquiry\n whether persons yet unborn may thus be deprived of their\n right--Rules of civil law respecting Usucaption and Prescription as\n applied to the case of Sovereign Princes, explained.\n\n\nI. A great difficulty arises here respecting the right to property\nby uninterrupted possession for any certain time. For though time is\nthe great agent, by whose motion all legal concerns and rights may\nbe measured and determined, yet it has no effectual power of itself\nto create an express title to any property. Now those rights were\nintroduced by the civil law; and it is not their long continuance,\nbut the express provisions of the municipal law, which gives them\ntheir validity. They are of no force therefore, in the opinion of\nVasquez, between two independent nations or sovereigns, or between a\nfree nation and a sovereign: between a sovereign and an individual who\nis not his subject, or between two subjects belonging to different\nkings or nations. Which indeed seems true; and is actually the case;\nfor such points relating to persons and things, are not left to\nthe law of nature, but are settled by the respective laws of each\ncountry. As the unqualified admission of this principle would lead to\ngreat inconvenience, and prevent the disputes of kings and nations\nrespecting the bounds of territory from ever being adjusted; in order\nto eradicate the seeds of perpetual warfare and confusion, so repugnant\nto the interests and feelings of every people; the settlement of such\nboundaries is not left to the claims of prescriptive right; but the\nterritories of each contending party are, in general, expressly defined\nby certain treaties.\n\nII. To disturb any one in the actual and long possession of territory,\nhas in all ages been considered as repugnant to the general interests\nand feelings of mankind. For we find in holy writ, that when the\nKing of the Ammonites demanded the lands situated between the rivers\nArnon and Jabok, and those extending from the deserts of Arabia\nto the Jordan, Jepthah opposed his pretentious by proving his own\npossession of the same for three hundred years, and asked why he and\nhis ancestors had for so long a period neglected to make their claim.\nAnd the Lacedaemonians, we are informed by Isocrates, laid it down for\na certain rule admitted among all nations, that the right to public\nterritory as well as to private property was so firmly established by\nlength of time, that it could not be disturbed; and upon this ground\nthey rejected the claim of those who demanded the restoration of\nMessena.\n\nResting upon a right like this, Philip the Second was induced to\ndeclare to Titus Quintius, \"that he would restore the dominions which\nhe had subdued himself, but would upon no consideration give up the\npossessions which he had derived from his ancestors by a just and\nhereditary title. Sulpitius, speaking against Antiochus, proved how\nunjust it was in him to pretend, that because the Greek Nations in\nAsia had once been under the subjection of his forefathers, he had a\nright to revive those claims, and to reduce them again to a state of\nservitude. And upon this subject two historians, Tacitus and Diodorus\nmay be referred to; the former of whom calls such obsolete pretensions,\nempty talking, and the latter treats them as idle tales and fables.\nWith these opinions Cicero, in his 2nd book of Offices, agrees, asking\n\"what justice there can be in depriving an owner of the land, which he\nhas for many ages quietly possessed?\"\n\nIII. Can it be said, in order to justify the disturbance of long\nenjoyed possessions, that the rightful owner INTENDED to assert his\nclaim, when he never manifested such intention by any outward visible\nact? The effect of right which depends upon a man's intentions can\nnever follow from a bare conjecture of his will, unless he has declared\nand proved it by some express and visible act. For actions being the\nonly evidence of intentions, intentions can never of themselves\nalone without such acts be the object of human laws. No conjectures\nindeed respecting the acts of the mind can be reduced to mathematical\ncertainty, but only to the evidence of probability at the utmost. For\nmen by their words may express intentions different from their real\nones, and by their acts counterfeit intentions which they have not. The\nnature of human society, however, requires that all acts of the mind,\nwhen sufficiently indicated, should be followed by their due effects.\nTherefore the intention, which has been sufficiently indicated, is\ntaken for granted against him who gave such indication.\n\nIV. But to proceed to proofs derived from actions. A thing is\nunderstood to be abandoned, when it is cast away; except it be under\nparticular circumstances, as throwing goods overboard in a storm to\nlighten a ship, where the owner is not supposed to have abandoned all\nintention of recovery, should it ever be in his power. Again, by giving\nup or cancelling a promissory note, a debt is deemed to be discharged.\nPaulus the Lawyer, says, a right to property may be renounced not only\nby words, but also by actions, or any other indication of the will.\nThus, if an owner knowingly make a contract with any one who is in\npossession, treating him as if he were the rightful proprietor, he\nis naturally supposed to have relinquished his own pretensions. Nor\nis there any reason, why the same rule may not take place between\nsovereign princes, and independent states, as between individuals. In\nthe same manner, a Lord by granting certain privileges to his Vassal,\nwhich he could not legally enjoy without a release from his former\nobligations, was supposed by such act to have given him his freedom. A\npower derived not from the civil law only, but from the law of nature,\nwhich allows every man to relinquish what is his own, and from a\nnatural presumption that a person designed to do the act which he has\ngiven manifest proofs of his intention to do. In this sense, Ulpian may\nbe rightly understood, where he says, that ACCEPTILATION or the verbal\ndischarge of a debt is founded upon the law of nations.\n\nV. Even omissions, taking all proper circumstances into consideration,\ncome under the cognizance of the law. Thus the person, who knowing\nof an act, and being present at the commission of it, passes it over\nin silence, seems to give his consent to it; this was admitted by\nthe Mosaic Law. Unless indeed it can be shewn that the same person\nwas hindered from speaking either by fear or some other pressing\ncircumstance. Thus a thing is accounted as lost when all hope of\nrecovering it is given up; as for instance, if a tame animal, which was\nin our possession, be seized and carried off by a wild beast. Goods too\nlost by shipwreck, Ulpian says, cease to be considered as our own, not\nimmediately, but when they are lost beyond all possibility of being\nreclaimed, and when no proofs of the owner's intention to reclaim them\ncan be discovered.\n\nNow the case is altered, if persons were sent to inquire after the\nlost goods, or property, and a reward was promised to the finder. But\nif a person knows his property to be in the possession of another, and\nallows it to remain so for a length of time, without asserting his\nclaim, unless there appear sufficient reasons for his silence, he is\nconstrued to have entirely abandoned all pretensions to the same. And\nto the same purpose he has said elsewhere, that a house is looked upon\nto be abandoned on account of the long silence of the proprietor.\n\nThe Emperor Antoninus Pius, in one of his rescripts, said there was but\nlittle justice in claiming interest upon money after a long period; for\nthe length of time elapsed was an indication that the debtor had been\nexcused from payment, from some motive of kindness.\n\nThere appears something similar to this in the nature of custom.\nFor apart from the authority of civil laws, which regulate the time\nand manner of custom, and its introduction, it may arise from the\nindulgence of a sovereign to a conquered people. But the length of time\nfrom which custom derives the force of right, is not defined, but left\nto the arbitrary decision of what is sufficient to indicate general\nconsent. But for silence to be taken as a valid presumption that\nproperty is deserted, two things are requisite: it must be a silence\nwith a knowledge of the fact, and with a perfect freedom of will in\nthe person concerned. For a silence founded in ignorance can have no\nweight; and where any other reason appears, the presumption of free\nconsent must fail.\n\nVI. Although the two requisites already named may be produced, yet\nother reasons have their weight; among which length of time is not the\nleast important. For in the first place, it can scarcely happen, that\nfor a great length of time a thing belonging to any one should not\nsome way or other come to his knowledge, as time might supply many\nopportunities. Even if the civil law did not interpose to bar remote\npretensions, the very nature of things would shew the reasonableness of\na shorter period of limitation being allowed to present than to absent\nclaimants. If impressions of fear were pleaded by any one in excuse,\nyet their influence would not be of perpetual duration, and length\nof time would unfold various means of security against such fears,\neither from resources within himself, or from the assistance of others.\nEscaping beyond the reach of him he dreaded, he might protest against\nhis oppression, by appealing to proper judges and arbitrators.\n\nVII. Now as time immemorial, considered in a moral light, seems to\nhave no bounds, silence for such a length of time appears sufficient\nto establish the presumption that all claim to a thing is abandoned,\nunless the strongest proofs to the contrary can be produced. The most\nable Lawyers have properly observed, that time according to the memory\nof man is not an hundred years, though probably it may not fall far\nshort of that space. For a hundred years are the term beyond which\nhuman existence seldom reaches; a space, which in general completes\nthree ages or generations of men. The Romans made this objection to\nAntiochus, that he claimed cities, which neither he himself, his\nfather, nor his grandfather had ever possessed.\n\nVIII. From the natural affection which all men have for themselves,\nand their property, an objection may be taken against the presumption\nof any one's abandoning a thing which belongs to him, and consequently\nnegative acts, even though confirmed by a long period of time, are not\nsufficient to establish the above named conjecture.\n\nNow considering the great importance deservedly attached to the\nsettlement of CROWNS, all conjectures favourable to the possessors\nought to be allowed. For if Aratus of Sicyon thought it a hard case,\nthat PRIVATE possessions of fifty years' standing should be disturbed,\nhow much weightier is that maxim of Augustus, that it is the character\nof a good man and a good subject to wish for no change in the present\ngovernment, and, IN THE WORDS, WHICH THUCYDIDES HAS ASSIGNED TO\nALCIBIADES, to support the constitution, under which he has been born?\nBut if no such rules in favour of possession could be adduced, yet a\nmore weighty objection might be found against the presumption, drawn\nfrom the inclination of every one to preserve his own right, which is\nthe improbability of one man's allowing another to usurp his property\nfor any length of time, without declaring and asserting his own right.\n\nIX. Perhaps it may reasonably be said, that this matter does not\nrest upon presumption only, but that it is a rule, introduced by the\nvoluntary law of Nations, that uninterrupted possession, against which\nno claim has been asserted, will entirely transfer such property to the\nactual possessor. For it is most likely that all nations by consent\ngave their sanction to such a practice, as conducive to their common\npeace. The term uninterrupted possession therefore has been very\nproperly used to signify, as Sulpitius says in Livy, \"that which has\nbeen held by one uniform tenour of right, without intermission.\" Or as\nthe same author, in another place, calls it, \"perpetual possession,\nthat has never been called in question.\" For a transitory possession\ncreates no title. And it was this exception which the Numidians had\nurged against the Carthaginians, alleging that as opportunity offered,\nsometimes the Kings of the Numidians had appropriated to themselves the\ndisputed possessions, which had always remained in the hands of the\nstronger party.\n\nX. But here another question, and that of considerable difficulty,\narises, which is, to decide, whether, by this desertion, persons yet\nunborn may be deprived of their rights. If we maintain that they\nMAY NOT, the rule already established would be of no avail towards\nsettling the tranquillity of kingdoms, and security of property. For\nin most things some thing is due to the interests of posterity. But if\nwe affirm that they MAY, it then seems wonderful that silence should\nprejudice the rights of those, who were unable to speak, before they\nhad any existence, and that the act of OTHERS should operate to their\ninjury. To clear up this point, we must observe that no rights can\nbelong to a person before he has any existence, as, in the language of\nthe schools, there can be no accident without a substance. Wherefore\nif a Prince, from urgent motives of policy, and for the advantage of\nhis own native dominions, and subjects, should decline to accept an\nadditional sovereignty, or for the same reasons, should relinquish\nthat, which he had already accepted, he would not be charged with\ninjuring his heirs and successors, then unborn, who could have no\nrights before they had a natural existence.\n\nNow as a sovereign may EXPRESSLY declare a change of his will\nrespecting such dominions, so that change may, in certain cases, be\nimplied without such declaration.\n\nIn consequence of such a change either expressed or implied, before the\nrights of heirs and successors can be supposed to have any existence,\nthe possession may be considered as entirely abandoned. The case here\nhas been considered according to the LAW OF NATURE: for the civil\nlaw, among other fictions, introduced that of the law's personating\nthose, who are not yet in being, and so preventing any occupancy from\ntaking place to their prejudice; a regulation of law established upon\nno slight grounds in order to preserve estates in families, although\nevery means of PERPETUATING property to individuals, which prevents\nits transfer from hand to hand, may in some measure be detrimental to\nthe public interest. From whence it is a received opinion, that length\nof time will give a property in those fees, which were originally\nconveyed, not by right of succession, but by virtue of primitive\ninvestiture. Covarruvias, a lawyer of great judgment, supports this\nopinion with the strongest arguments in favour of primogeniture, and\napplies it to estates left in trust. For nothing can prevent the civil\nlaw from instituting a right, which, though it cannot be lawfully\nalienated by the act of one party without consent of the other, yet, to\navoid uncertainty in the tenure of present proprietors, may be lost by\nneglect of claim for a length of time. Still the parties thus deprived\nmay maintain a personal action against those, or their heirs, through\nwhose neglect their right has been forfeited.\n\nXI. It is an inquiry of importance whether the law of usucaption and\nprescription, if it prevail in a prince's dominions, can be applied to\nthe tenure of the crown, and all its prerogatives. Many legal writers,\nwho have treated of the nature of sovereign power according to the\nprinciples of the Roman civil law, seem to affirm that it may be so\napplied. But this is an opinion to which we cannot accede in its full\nextent. For to make a law binding upon any one, it is requisite that\nthe legislator should possess both power and will. A legislator is not\nbound by his law, as by the irrevocable and unchangeable controul of\na superior. But occasions may arise that will demand an alteration\nor even a repeal of the law which he has made. Yet a legislator may\nbe bound by his own law, not directly as a legislator, but as an\nindividual forming part of the community: and that too according to\nnatural equity, which requires that all the component parts should bear\na reference to the whole. We find in holy writ, this rule observed by\nSaul in the beginning of his reign.\n\nNow that rule does not take place here. For we are considering the\nlawgiver, not as a part but as the REPRESENTATIVE and SOVEREIGN of the\nwhole community. Nor indeed can any such intention in the lawgiver\nbe presumed to have existed. For legislators are not supposed to\ncomprehend themselves within the rule of the law, except where the\nnature and subject of it are general. But sovereignty is not to be\ncompared with other things; it so far surpasses them in the nobleness\nof its end, and the dignity of its nature. Nor is any civil law to\nbe found which either does, or designs to comprehend sovereign power\nwithin the rules of prescription.\n\n\n\n\nCHAPTER IX.[22]\n\nIN WHAT CASES JURISDICTION AND PROPERTY CEASE.\n\n Jurisdiction and property cease, when the family of the owner has\n become extinct--In what manner the rights of a people may become\n extinct--A people becomes extinct when its essential parts are\n destroyed--A people does not become extinct by emigration--The\n existence of separate states not destroyed by a federal union.\n\n\nI. and II. After the preceding inquiries into the manner in which\nprivate property as well as sovereign power may be acquired and\ntransferred, the manner, in which they cease, naturally comes next\nunder consideration. It has been shewn before that the right to\nproperty may be lost by neglect; for property can continue no longer\nthan while the will of ownership continues. There is also another\nmanner in which property may cease to exist, without any express or\nimplied alienation: and that is where the family either of a sovereign,\nor an owner, becomes extinct, a contingency for which provision must\nbe made somewhat similar to a succession to the property of one who\ndies intestate. Wherefore if any one die, without any declaration of\nhis will, and have no relations by blood, all the right, which he had,\nbecomes extinct, and reverts, if a sovereign, to the hands of the\nnation, except where express provisions of law have been made to the\ncontrary.\n\nIII. The same mode of reasoning applies to a nation. Isocrates, and\nafter him the Emperor Julian, has said that states are immortal, or\nmay be so. For a people is one of that kind of bodies which are formed\nof distinct parts, following each other in regular succession, and\nsupplying the place of the deceased. This body goes under one name,\nforming, as Plutarch says, one constitution; or, in the language\nof Paulus the Lawyer, one spirit. Now the spirit or constitution in\na people is the full and perfect harmony of civil life, from which\nemanates the sovereign power, the very soul of all government, and, as\nSeneca says, the vital breath which so many thousands draw.\n\nThese artificial bodies bear a close resemblance to the natural body,\nwhich, notwithstanding the alteration of its component particles,\nloses not its identity, so long as the general form remains. And\ntherefore in the passage of Seneca, where he says, that no one is the\nsame in his old age that he was in his youth, he means only as to\nnatural substance. In the same manner Heraclitus, as cited by Plato\nin Cratylus, and Seneca in the place already quoted, has said, that\nwe cannot descend TWICE into the same river. But Seneca afterwards\ncorrects himself, adding, that the river retains its name, though the\nwatery particles of which it is composed are perpetually changing.\nSo Aristotle, too, in comparing nations to rivers, has said that the\nrivers are always called by the same name, though their several parts\nare fluctuating every moment. Nor is it the name alone which continues,\nbut that principle also which Conon calls the constitutional system\nof the body, and Philo the spirit, that holds it together. So that a\npeople, as Alphenus and Plutarch, in speaking of the late, but unerring\napproach of divine vengeance, maintain, though not one of its members\nof a former period be now living, is the same at present that it was\na hundred years ago, as long as the spirit, which first framed and\nafterwards kept the body together, preserves its identity.\n\nHence has originated the custom, in addressing a people, of ascribing\nto them, who are now living, what happened to the same people many ages\nbefore; as may be seen both in profane historians, and in the books of\nholy writ. So in Tacitus, Antony the First serving under Vespasian,\nreminds the soldiers of the third legion of what they had done in\nformer times, how under Mark Antony they had beaten the Parthians, and\nunder Corbulo the Armenians. There was more of prejudice, therefore,\nthan truth in the reproach, which Piso cast upon the Athenians of his\nown time, refusing to consider them as Athenians since they had become\nextinct by so many disasters, and were nothing more than a base mixture\nof all nations of the earth. We say there was more of prejudice than\ntruth in this reproach. For though such a mixture might diminish the\ndignity, it could not destroy the existence of a people. Nor was he\nhimself ignorant of this. For he reproaches the Athenians of his\nown day with their feeble efforts in former times against Philip of\nMacedon, and their ingratitude to their best friends. Now as a change\nof its component parts cannot destroy the identity of a people, not\neven for a thousand years or more; so neither can it be denied that a\npeople may lose its existence in two ways; either by the extinction of\nall its members, or by the extinction of its form and spirit.\n\nIV. A body is said to die, when its essential parts, and necessary\nform of subsistence are destroyed. To the former case may be referred\nthe instance of nations swallowed up by the sea, as Plato relates, and\nothers whom Tertullian mentions: or if a people should be destroyed\nby an earthquake, of which there are many instances in history, or\nshould destroy themselves, as the Sidonians and Saguntines did. We are\ninformed by Pliny, that in ancient Latium, fifty-three nations were\ndestroyed without a single trace of them remaining.\n\nBut what, it may be said will be the case, if out of such a nation so\nfew remain that they cannot form a people? They will then retain that\nproperty, which they had before as private persons, but not in a public\ncapacity. The same is the case with every community.\n\nV. A people loses its form, by losing all or some of those rights,\nwhich it had in common; and this happens, either when every individual\nis reduced to slavery, as the Mycenaeans, who were sold by the Argives;\nthe Olynthians by Philip, the Thebans by Alexander, and the Brutians,\nmade public slaves by the Romans: Or when, though they retain their\npersonal liberty, they are deprived of the rights of sovereignty. Thus\nLivy informs us respecting Capua, that the Romans determined, though it\nmight be inhabited as a city, that there should be no municipal body,\nno senate, no public council, no magistrates, but that deprived of\npolitical deliberation, and sovereign authority, the inhabitants should\nbe considered as a multitude; subject to the jurisdiction of a Praefect\nsent from Rome. Therefore Cicero, in his first speech against Rullus,\nsays that there was no image of a republic left at Capua. The same\nmay be said of nations reduced to the form of Provinces, and of those\nsubjugated by another power; as Byzantium was to Perinthus, by the\nEmperor Severus, and Antioch to Laodicea, by Theodosius.\n\nVI. But if a nation should emigrate, either spontaneously, on account\nof scarcity or any other calamity, or if by compulsion, which was the\ncase with the people of Carthage in the third Punic war, while she\nretains her form, she does not cease to be a people; and still less so,\nif only the walls of her cities be destroyed, and therefore when the\nLacedaemonians refused to admit the Messenians to swear to the peace of\nGreece, because the walls of their city were destroyed, it was carried\nagainst them in the General Assembly of the Allies.\n\nNor does it make any difference in the argument, whatever the form of\ngovernment may be, whether regal, aristocratical, or democratical. The\nRoman people for instance was the same, whether under kings, consuls,\nor emperors. Even indeed under the most absolute form, the people is\nthe same that it was in its independent state, while the king governs\nit as head of that people, and not of any other. For the sovereignty\nwhich resides in the king as the head, resides in the people likewise\nas the body of which he is the head; and therefore in an elective\ngovernment, if the king or the royal family should become extinct, the\nrights of sovereignty, as it has been already shewn, would revert to\nthe people.\n\nNor is this argument overthrown by the objection drawn from Aristotle,\nwho says that, if the form of government is changed, the state no\nlonger continues to be the same, as the harmony of a piece of music is\nentirely changed by a transition from the Doric to the Phrygian measure.\n\nNow it is to be observed, that an artificial system may possess many\ndifferent forms, as in an army under one supreme commander there are\nmany subordinate parts, and inferior powers, while in the operations\nof the field it appears but as one body. In same manner, the union of\nthe legislative and executive in a state gives it the appearance of\none form, while the distinction between subject and sovereign, and\ntheir still mutual relation give it another. The executive power is the\npolitician's concern; the judicial, the lawyer's. Nor did this escape\nthe notice of Aristotle. For he says it belongs to a science different\nfrom that of politics to determine whether, under a change in the form\nof government, the debts contracted under the old system ought to be\ndischarged by the members of the new. He does this, to avoid the fault\nwhich he blames in many other writers, of making digressions from one\nsubject to another.\n\nIt is evident that a state, which from a commonwealth has become a\nregal government, is answerable for the debts incurred before that\nchange. For it is the same people, possessing all the same rights,\nand powers, which are now exercised in a different manner, being no\nlonger vested in the body, but in the head. This furnishes a ready\nanswer to a question some times asked, which is, what place in general\nassemblies of different states, ought to be assigned to a sovereign,\nto whom the people of a commonwealth have transferred all their power?\nUndoubtedly the same place which that people or their representatives\nhad occupied before in such councils. Thus in the Amphictyonic council,\nPhilip of Macedon succeeded to the place of the Phocensians. So, on the\nother hand, the people of a commonwealth occupy the place assigned to\nsovereigns.\n\nVIII.[23] Whenever two nations become united, their rights, as distinct\nstates, will not be lost, but will be communicated to each other. Thus\nthe rights of the Albans in the first place, and afterwards those\nof the Sabines, as we are informed by Livy, were transferred to the\nRomans, and they became one government. The same reasoning holds good\nrespecting states, which are joined, not by a federal UNION, but by\nhaving one sovereign for their head.\n\nIX. On the other hand, it may happen that a nation, originally forming\nbut one state, may be divided, either by mutual consent, or by the\nfate of war; as the body of the Persian Empire was divided among the\nsuccessors of Alexander. When this is the case, many sovereign powers\narise in the place of one, each enjoying its independent rights,\nwhatever belonged to the original state, in common, must either\ncontinue to be governed as a common concern, or be divided in equitable\nproportions.\n\nTo this head may be referred the voluntary separation, which takes\nplace when a nation sends out colonies. For thus a new people as it\nwere is formed, enjoying their own rights; and as Thucydides says, sent\nout not upon terms of slavery, but equality, yet still owing respect\nand obedience to their mother-country. The same writer, speaking of\nthe second colony sent by the Corinthians to Epidamnus, says, \"they\ngave public notice that such as were willing to go should enjoy equal\nprivileges with those that staid at home.\"\n\n\n\n\nCHAPTER X.\n\nTHE OBLIGATION ARISING FROM PROPERTY.\n\n Origin and nature of the obligation to restore what belongs to\n another--Obligation to restore to the rightful owner the profits\n that have accrued from the unjust possession of his personal or\n real property--A bona-fide possessor not bound to restitution if\n the thing has perished--Such bona-fide possessor bound to the\n restitution of the profits remaining in his hands--Bound to make\n reparation for the consumption occasioned by his possession--A\n possessor not bound to make a recompence for a gift, with an\n exception--The sale of any thing that has been bought, obliges the\n seller to make restitution, with a certain exception--In what cases\n a bona-fide purchaser of what belongs to another may retain the\n price, or a part of it--He who has purchased a thing of one who is\n not the real owner, cannot return it to that seller--The possessor\n of a thing whose real owner is unknown, not bound to give it up\n to any one--A person not bound to restore money received upon a\n dishonest account, or for service done--Opinion that the property\n of things valued by weight, number and measure, may be transferred\n without consent of the owner, refuted.\n\n\nI. Having explained in the preceding part the nature and rights of\nproperty, it remains for us to consider the obligation which we incur\nfrom thence.\n\nNow this obligation proceeds from things either in existence, or not\nin existence, comprehending, under the name of things, the right also\nover persons, as far as is beneficial to us. The obligation, arising\nfrom things in existence, binds the person, who has our property in\nhis power, to do all he can to put us again into possession of it. We\nhave said to do all he can: for no one is bound to an impossibility,\nnor to procure the restoration of a thing at his own expence. But he is\nobliged to make every discovery which may enable another to recover his\nown property. For as in a community of things, it was necessary that a\ncertain equality should be preserved, to prevent one man from having an\nundue share of the common stock; so upon the introduction of property,\nit became, as it were, a kind of established rule of society among the\nowners, that the person, who had in his possession anything belonging\nto another should restore it to the lawful proprietor. For if the right\nof property extended no farther than barely to enable the owner to\nmake a demand of restitution without ENFORCING it by LEGAL PROCESS,\nit would rest upon a very weak foundation, and scarce be worth the\nholding. Nor does it make any difference, whether a person has fairly\nor fraudulently obtained possession of a thing not belonging to him.\nFor he is equally bound to restore it, both by the positive obligations\nof law, and by the principles of natural justice. The Lacedaemonians\nhad nominally cleared themselves of the crime, by condemning Phaebidas,\nwho, in violation of their treaty with the Thebans, had seized upon\nthe citadel of Cadmea, but in reality they where guilty of injustice,\nby retaining the possession. And Xenophon has remarked that, such a\nsingular act of injustice was punished by the signal providence of\nGod. For the same reason Marcus Crassus, and Quintus Hortensius, are\nblamed for having retained part of an inheritance left them by a will,\nthe making of which had been procured upon false pretences, but in the\nmanagement of which they had no share. Cicero blames them, because it\nis understood to be settled by general agreement, that all men are to\nrestore what they are possessed of, if another is proved to be the\nrightful owner. A principle by which property is firmly secured, and\nupon which all special contracts are founded, and any exceptions to\nthis rule, contained in them, must be expressly named as such. This\nthrows light upon the passage of Tryphoninus. \"If a robber, _says he_,\nhas spoiled me of my goods, which he has deposited with Seius, who\nknows nothing of the fact; the question is, whether he ought to restore\nthem to the robber or to me. If we consider him as giving and receiving\non his own account, GOOD FAITH requires that the deposit should be\nrestored to him who gave it. If we consider the equity of the whole\ncase, including all the persons concerned in the transaction, the goods\nshould be restored to me, as the person unjustly deprived of them.\"\nAnd he properly adds, \"I prove it to be strict justice to assign every\none his due, without infringing on the more just claims of another.\"\nNow it has been shewn that the justest title on which any one can\nclaim, is that which is coaeval with the property itself. From whence\nthe principle laid down by Tryphoninus, that if any one unknowingly\nreceived goods as a deposit, and afterwards discovers them to be his\nown, he is not bound to restore them. And the question, which the same\nauthor puts a little before respecting goods deposited by one, whose\nproperty had been confiscated, is better settled by this principle,\nthan by what he says elsewhere on the utility of punishment. For as to\nthe nature of property, it makes no difference, whether it arises from\nthe law of nations, or from the civil law; as it always carries with it\npeculiar qualities, among which may be reckoned the obligation, under\nwhich every possessor lies to restore a thing to its rightful owner.\nAnd hence it is said by Martian, that according to the law of nations,\nrestitution may be demanded, of those, who have no legal title to the\npossession. From the same origin springs the maxim of Ulpian, that\nwhoever has found a thing belonging to another, is bound to restore it,\neven without claiming or receiving a reward for finding it. The profits\nalso are to be restored, with a deduction only of reasonable charges.\n\nII. Respecting things, non-existent, or whose identity cannot be\nascertained, is a principle generally received among mankind, that\nthe person, who has become richer by that property, of which the\nrightful owner has been dispossessed, is bound to make him reparation\nin proportion to the benefit, which he has derived from his property.\nFor the true proprietor may be justly said to have lost, what HE has\ngained. Now the very introduction of property was intended to preserve\nthat equality, which assigns to every one his own.\n\nCicero has said, that it is contrary to natural justice, for one man\nto improve his own advantage at the expence of another, and in another\nplace, that nature does not allow us to increase our resources, riches,\nand power, from the spoils of others. There is so much of equity in\nthis saying, that many legal writers have made it the basis of their\ndefinitions, to supply the deficiency of the strict letter of the law,\nalways appealing to equity as the most sure and clear rule of action.\n\nIf any one employ a slave, as his factor, to trade for him, he is bound\nby the acts of that factor, unless he has previously given notice that\nhe is not to be trusted. But even if such notice has been given, where\nthe factor has a property in the concern, or the master a profit, the\nnotice shall be deemed a fraud. For, says Proculus, whoever makes\nan advantage from the loss of another is guilty of a fraud; a term\nimplying every thing repugnant to natural justice and equity. He, who,\nat the instance of a mother, has put in bail for her son's advocate,\nhas no action on the case against the advocate for what is called an\nassumpsit or undertaking. For it was not strictly his business, which\nthe advocate managed; the bail was put in at the INSTANCE of the\nMOTHER. Yet according to the opinion of Papinian, an action on the\ncase for the assumpsit, or undertaking will lie against the advocate,\nbecause it is with the bailor's money that he is discharged from the\nrisque of the costs.\n\nSo a wife who has given to her husband money, which she may by law\ndemand again, has a personal action of recovery against him, or an\nindirect action upon any thing purchased with the money. Because, as\nUlpian says, it cannot be denied, that the husband has been richer by\nit, and the question is, whether what he possesses belongs to his wife?\n\nIf I have been robbed by my slave, and any one has spent the money\nunder the supposition that it was the slave's own property, an action\nmay be maintained against that person, as being unjustly in possession\nof my property. According to the Roman laws, minors are not answerable\nfor money borrowed. Yet if a minor has become richer by the loan, an\nindirect action will lie against him, or, if anything, belonging to\nanother, has been pawned and sold by a creditor, the debtor should be\nreleased from the debt in proportion to what the creditor has received.\nBecause, says Tryphoninus, whatever the obligation may be, since the\nmoney raised accrued from the debt, it is more reasonable that it\nshould redound to the benefit of the debtor than the creditor. But\nthe debtor is bound to indemnify the purchaser, for it would not be\nreasonable that he should derive gain from another's loss. Now if a\ncreditor, holding an estate in pledge for his money, has received from\nit rents and profits amounting to more than his real debt; all above\nthat shall be considered as a discharge of so much of the principal.\n\nBut to proceed with other cases. If you have treated with my debtor,\nnot supposing him to be indebted to me, but to another person, and have\nborrowed my money of him, you are obliged to pay me; not because I have\nlent you money; for that could only be done by mutual consent; but\nbecause it is reasonable and just, that my money, which has come into\nyour possession, should be restored to me.\n\nThe later writers on the law have adduced this kind of reasoning in\nsupport of similar cases. Thus, for instance, if the goods of any one,\nwho has been cast through default, have been sold, if he can make any\ngood exception to the decision, he shall be entitled to the money\narising from such sale. Again, when any one has lent money to a father\nfor the maintenance of his son; if the father should become insolvent,\nhe may bring an action against the son, provided the son is possessed\nof any thing through his mother.\n\nThese two rules being perfectly understood, there will be no difficulty\nin answering the questions often proposed by Lawyers and Theologians on\nsuch subjects.\n\nIII. In the first place it appears, that a person who has obtained\npossession of goods by fair means, is not bound to restitution,\nif those goods have perished, because they are no longer in his\npossession, nor has he derived any advantage from them. The case of\nunlawful possession which is left to the punishment of the law is\nentirely out of the question.\n\nIV. In the next place a bona-fide possessor of a thing is bound to a\nrestitution of the fruits or profits thereof remaining in his hand. The\nFRUITS or PRODUCE of the THING ITSELF are here meant. For the benefit\nderived from a thing owing to the industry bestowed upon it by the\noccupier thereof, cannot belong to the thing itself, though originally\nproceeding from it. The reason of this obligation arises from the\ninstitution of property. For the true proprietor of a possession is\nnaturally proprietor of the fruits or produce of the same.\n\nV. Such possessor in the third place is bound to make restitution of\nthe thing, or reparation for the consumption of it occasioned by his\npossession. For he is conceived to have been made the richer thereby.\nThus Caligula is praised for having, in the beginning of his reign,\nrestored to different Princes along with their crowns, the intermediate\nrevenues of their kingdoms.\n\nVI. In the fourth place, an occupier of lands, for instance, is not\nbound to make a compensation for the produce thereof which he has not\nreaped. For if dispossessed, he has neither the thing itself, nor any\nthing in the place of it.\n\nVII. In the fifth place, a possessor who has granted to a third person\na thing of which a gift had been made to himself, is not bound to\nmake a recompence to the original giver, unless he received it under\nstipulation, that if he granted it to a third person, and thereby\nspared his own property, he should make a return proportionable to such\ngain.\n\nVIII. Sixthly, if any one has sold a thing which he has bought, he is\nnot bound to restitution of more than the surplus arising from the\nsale. But if he had received it under stipulation to sell, he is bound\nto make restitution of the whole price, unless, in transacting the sale\nhe has incurred an expence, amounting to the whole price, which he\nwould not otherwise have done.[24]\n\nIX. Seventhly, a bona-fide purchaser of what belongs to another is\nobliged to make restitution to the real owner, nor can the price he\npaid be recovered. To this however there seems to be one exception,\nwhich is, where the owner could not have recovered possession without\nsome expence; so for instance, if his property were in the hands of\npirates. For then a deduction may be made of as much as the owner would\nwillingly have spent in the recovery. Because the actual possession,\nespecially of a thing difficult to be recovered, may be ascertained,\nand the owner deemed so much the richer by such recovery. And\ntherefore, though in the ordinary course of law, the purchase of what\nbelongs to one's self can never constitute a bargain, yet Paulus the\nLawyer says, that it may do so, if it has been originally agreed that\nwe are to pay for the re-possession of what another has belonging to us\nin his hands.\n\nNor is it in the least material, whether a thing has been bought with\nan intention of restoring it to the owner; in which case, some say,\nthat an action for costs may be maintained, whilst others deny it. For\nan action on the case, to recover a compensation for business done\narises from the artificial rules of CIVIL LAW, and not solely from\nthe simple dictates of natural justice; which are here the principal\nsubject of inquiry.\n\nNot unlike to this is what Ulpian has written on funeral expences, in\nwhich he says, that a compassionate judge will not rigidly regard the\nbare labour that has been given, but allowing some relaxation in favour\nof equity, will shew indulgence to the feelings of human nature.\n\nThe same writer, in another place has said, that if any one has\ntransacted my business, not out of regard to me, but for his own\ninterest, and has incurred expence on my account, he may bring an\naction on the case, not for what he has given, but for what I have\ngained by his labour and expence.\n\nIn the same manner, owners, by throwing whose goods overboard a ship\nhas been lightened, may recover a compensation from others whose goods\nwere by that means saved. Because those persons are considered so much\nthe richer by the preservation of what would otherwise have been lost.\n\nX. Eighthly, the person that has bought a thing of one, who is not the\nowner, cannot return it to that seller; because from the time that the\nthing came into his possession, he incurred an obligation to restore it\nto the lawful owner.\n\nXI. Again, if any one is in possession of a thing, whose real owner is\nunknown, he is not naturally, and necessarily bound to give it to the\npoor; although this may be considered as an act of piety, a custom very\nproperly established in some places. The reason of which is founded\non the introduction of property. For, in consequence of that, no one\nexcept the real owner, can claim a right to any thing. To the person\ntherefore, who cannot discover such an owner, it is the same as if\nthere really were none.\n\nXII. Lastly, a person is not obliged by the law of nature to restore\nmoney, which has been received upon a dishonest account, or for the\nperformance of a legal act, to which that person was of himself\nbound. However it is not without reason that some laws have required\nrestitution in such cases. The reason of this is, because no one is\nbound to part with any thing unless it belongs to another. But here the\nproperty is voluntarily transferred by the first owner.\n\nThe case will be altered, if there be any thing iniquitous in the\nmanner of acquiring the thing; as if, for instance, it be gained\nby extortion. This gives rise to the obligation of submitting to\npenalties, which is not immediately to the present purpose.\n\nXIII. The present subject may be concluded with a refutation of\nMedina's false opinion, that a property in things, belonging to\nanother, may be transferred without consent of the owner; provided\nthe things are such as are usually valued by weight, number and\nmeasure. Because things of that nature can be repaid in kind, or by an\nequivalent. But this is only, where such a mode of repayment has been\npreviously agreed upon; or where it is understood to be established by\nlaw or custom; or where the thing itself has been consumed, and cannot\nbe identically restored. But without such consent, either expressed\nor implied, or excepting the impossibility just mentioned, the things\nthemselves must be restored.\n\n\n\n\nCHAPTER XI.\n\nON PROMISES.\n\n Opinion, that the obligation to fulfil promises is not enacted\n by the law of nature, refuted--A bare assertion not binding--A\n promiser bound to fulfil his engagements, though no right to exact\n the performance of them, is thereby conveyed to another--What\n kind of promise gives such right--The promiser should possess\n the right use of reason--Difference between natural and civil\n law with respect to minors--Promises made under an error, or\n extorted by fear, how far binding--Promises valid, if in the\n power of the promiser to perform them--Promise made upon unlawful\n considerations, whether binding--Manner of confirming the promises\n made by others, and the conduct of Ambassadors who exceed their\n instructions, considered--Owners of ships, how far bound by the\n acts of the masters of such vessels, and merchants by the acts\n of their factors--Acceptance requisite to give validity to a\n promise--Promises sometimes revokable--The power of revoking a\n promise, explained by distinctions--Burdensome conditions annexed\n to a promise--Means of confirming invalid promises--Natural\n obligation arising from engagements made for others.\n\n\nI. The course of the subject next leads to an inquiry into the\nobligation of promises.[25] Where the first object, that presents\nitself, is the opinion of Franciscus Connanus, a man of no ordinary\nlearning. He maintains an opinion that the law of nature and of nations\ndoes not enforce the fulfilment of those agreements, which do not\ninclude an express contract.[26] Yet the fulfilment of them is right,\nin cases, where, even without a promise, the performance would be\nconsonant to virtue and equity. In support of his opinion, he brings\nnot only the sayings of Lawyers, but likewise the following reasons. He\nsays, that the person, who makes, and he who believes, a rash promise,\nare equally to blame. For the fortunes of all men would be in imminent\ndanger, if they were bound by such promises, which often proceed from\nmotives of vanity rather than from a settled deliberation, and are\nthe result of a light and inconsiderate mind. Lastly, the performance\nof whatever is any way just in itself, ought to be left to the free\nwill of every one, and not exacted according to the rigid rules of\nnecessity. He says that it is shameful not to fulfil promises; not\nbecause it is unjust, but because it argues a levity in making them.\n\nIn support of his opinion, he appeals also to the testimony of Tully,\nwho has said, that those promises are not to be kept, which are\nprejudicial to the person to whom they are made, nor, if they are\nmore detrimental to the giver than beneficial to the receiver. But\nif the performance of an engagement is begun upon the strength of a\npromise, but not finished, he does not require a complete fulfilment\nof the promise, but only some compensation to the party for the\ndisappointment. Agreements, he continues, have no intrinsic force of\nobligation, but only what they derive from the express contracts, in\nwhich they are included, or to which they are annexed, or from the\ndelivery of the thing promised. From whence arise actions, on the one\nside, and exceptions on the other, and bars to all claims of recovery.\n\nBut it is through favour of the laws alone, which give the efficacy\nof obligation to what is only fair and equitable in itself, that\nobligatory agreements, such as express covenants and other things of\nthat kind, derive their force.\n\nNow there is no consistency in this opinion, taken in the general sense\nintended by its author. For in the first place it immediately follows\nfrom thence, that there is no force in treaties between kings and\ndifferent nations, till some part of them be carried into execution,\nespecially in those places, where no certain form of treaties or\ncompacts has been established. But no just reason can be found, why\nlaws, which are a kind of general agreement among a people, and indeed\nare called so by Aristotle, and Demosthenes, should be able to give the\nforce of obligation to compacts, and why the will of an individual,\ndoing every thing to bind himself, should not have the same power;\nespecially where the civil law creates no impediment to it. Besides,\nas it has been already said that the property of a thing may be\ntransferred, where a sufficient indication of the will is given. Why\nmay we not then convey to another the right to claim a transfer of our\nproperty to him, or the fulfilment of our engagements, as we have the\nsame power over our actions, as over our property?\n\nThis is an opinion confirmed by the wisdom of all ages. For as it\nis said by legal authorities, that since nothing is so consonant to\nnatural justice, as for the will of an owner, freely transferring his\nproperty to another, to be confirmed, so nothing is more conducive to\ngood faith among men, than a strict adherence to the engagements they\nhave made with each other. Thus a legal decision for the payment of\nmoney, where no debt has been incurred, except by the verbal consent of\nthe party promising, is thought conformable to natural justice. Paulus\nthe Lawyer also says, that the law of nature and the law of nations\nagree in compelling a person, who has received credit, to payment. In\nthis place the word, COMPELLING, signifies a moral obligation. Nor\ncan what Connanus says be admitted, which is, that we are supposed to\nhave credit for a full performance of a promise, where the engagement\nhas been in part fulfilled. For Paulus in this place is treating of an\naction where nothing is due; which action is entirely void, if money\nhas been paid, in any way, whether according to the manner expressly\nstipulated, or any other. For the civil law, in order to discourage\nfrequent causes of litigation, does not interfere with those agreements\nwhich are enforced by the law of nature and of nations.\n\nTully, in the first book of his Offices, assigns such force to the\nobligation of promises, that he calls fidelity the foundation of\njustice, which Horace also styles the sister of justice, and the\nPlatonists often call justice, TRUTH, which Apuleius has translated\nFIDELITY, and Simonides has defined justice to be not only returning\nwhat one has received, but also speaking the truth.\n\nBut to understand the matter fully, we must carefully observe that\nthere are three different ways of speaking, respecting things which\nARE, or which, it is supposed, WILL be in our power.\n\nII. The first of these ways is, where an assurance is given of future\nintentions, and if the assurance be SINCERE at the time it is given,\nthough it should not be carried into effect, no blame is incurred, as\nit might afterwards not be found expedient. For the human mind has not\nonly a natural power, but a right to change its purpose. Wherefore if\nany blame attaches to a change of opinion, or purpose, it is not to be\nimputed to the BARE ACT OF CHANGING, but to the CIRCUMSTANCES, under\nwhich it happens, especially when the former resolution was the best.\n\nIII. The second way is, when future intentions are expressed by outward\nacts and signs sufficient to indicate a resolution of abiding by\npresent assurances. And these kind of promises may be called imperfect\nobligations, but conveying to the person to whom they are given no\nRIGHT to exact them. For it happens in many cases that we may be under\nan obligation of duty, to the performance of which another has no right\nto compel us. For in this respect the duty of fidelity to promises, is\nlike the duties of compassion and gratitude. In such kinds of promises\ntherefore the person to whom they are made, has no right, by the law of\nnature to possess himself of the effects of the promiser, as his own,\nnor to COMPEL him to the performance of his promise.\n\nIV. The third way is, where such a determination is confirmed by\nevident signs of an intention to convey a peculiar right to another,\nwhich constitutes the perfect obligation of a promise, and is attended\nwith consequences similar to an alienation of property.\n\nThere may be two kinds of alienation, the one of our property, the\nother of a certain portion of our liberty. Under those of the former\nkind we may class the promises of gifts, and under the latter the\npromises of doing certain actions. On this subject we are supplied\nwith noble arguments from the divine oracles, which inform us, that\nGod himself, who can be limited by no established rules of law, would\nact contrary to his own nature, if he did not perform his promises.\nFrom whence it follows that the obligations to perform promises spring\nfrom the nature of that unchangeable justice, which is an attribute of\nGod, and common to all who bear his image, in the use of reason. To\nthe proofs of scripture here referred to, we may add the judgment of\nSolomon, \"My son if thou hast been surety for thy friend, thou hast\ntied up thy hands to a stranger; thou art ensnared by the words of thy\nmouth, then art thou taken by the words of thine own mouth.\" Hence a\npromise is called by the Hebrews a bond or chain, and is compared to a\nvow. Eustathius in his notes on the second book of the Iliad, assigns a\nsimilar origin to the word \u1f51\u03c0\u03bf\u03c3\u03c7\u03b5\u03c3\u03b5\u03c9\u03c2 {hyposchese\u00f4s} or engagement. For\nhe who has received the promise, in some measure takes and holds the\nperson, that has made the engagement. A meaning not ill expressed by\nOvid in the second book of his Metamorphoses, where the promiser says\nto him, to whom he had promised, \"My word has become yours.\"\n\nAfter knowing this, there remains no difficulty in replying to the\narguments of Connanus. For the expressions of the lawyers, respecting\nBARE PROMISES, refer only to what was introduced by the Roman laws,\nwhich have made a FORMAL STIPULATION the undoubted sign of a deliberate\nmind.\n\nNor can it be denied that there were similar laws among other nations.\nFor Seneca, speaking of human laws, and promises made without proper\nsolemnities, says, \"What law, _of any country, we may add_, obliges us\nto the performance of bare promises?\" But there may naturally be other\nsigns of a deliberate mind, besides a formal stipulation, or any other\nsimilar act which the civil law requires, to afford grounds for a legal\nremedy. But what is not done with a deliberate mind, we are inclined\nto believe does not come under the class of perfect obligations; as\nTheophrastus has observed in his book on laws. Nay, even what is done\nwith a deliberate mind, but not with an intention of conceding our\nown right to another; though it cannot give any one a natural right\nof exacting its fulfilment, yet it creates an obligation not only in\npoint of duty, but in point of moral necessity. The next matter to be\nconsidered is, what are the requisites to constitute a perfect promise.\n\nV. The use of reason is the first requisite to constitute the\nobligation of a promise, which ideots, madmen, and infants are\nconsequently incapable of making. The case of minors is somewhat\ndifferent. For although they may not have a sound judgment, yet it is\nnot a permanent defect, nor sufficient of itself to invalidate all\ntheir acts. It cannot be certainly defined at what period of life\nreason commences. But it must be judged of from daily actions, or from\nthe particular customs of each country. Amongst the Hebrews a promise\nmade by a male at the age of thirteen, and by a female at the age of\ntwelve, was valid. In other nations, the civil laws, acting upon just\nmotives, declare certain promises made by wards and minors to be void,\nnot only among the Romans, but among the Greeks also, as it has been\nobserved by Dion Chrysostom in his twenty-fifth oration. To do away\nthe effect of improvident promises, some laws introduce actions of\nrecovery, or restitution. But such regulations are peculiar to the\ncivil law, and have no immediate connection with the law of nature and\nof nations, any farther than that wherever they are established, it is\nconsonant to natural justice that they should be observed. Wherefore\nif a foreigner enter into an agreement with a citizen or subject of\nany other country; he will be bound by the laws of that country, to\nwhich, during his residence therein, he owes a temporary obedience.\nBut the case is different, where an agreement is made upon the open\nsea, or in a desert island, or by letters of correspondence. For such\ncontracts are regulated by the law of nature alone, in the same manner\nas compacts made by sovereigns in their public capacity.\n\nVI. The consideration of promises, made under an error, is a subject\nof some intricacy. For it, in general, makes a difference, whether\nthe promiser knew the full extent of his promise, and the value of\nthe thing promised, or not, or whether the contract, which was made,\noriginated in fraudulent intention, or not, or whether one of the\nparties was privy to the fraud; and whether the fulfilment of it was\nan act of strict justice, or only of good faith. For according to\nthe variety of these circumstances, writers pronounce some acts void\nand others valid, leaving the injured party a discretionary power to\nrescind or amend them.\n\nMost of these distinctions originate in the ancient civil, and\npraetorian Roman law. Though some of them are not strictly founded in\nreason and truth. But the most obvious and natural way of discovering\nthe truth is by referring to laws, which derive their force and\nefficacy from the general consent of mankind; so that if a law rests\nupon the presumption of any fact, which in reality has no existence,\nsuch a law is not binding. For when no evidence of the fact can be\nproduced, the entire foundation, on which that law rests must fail. But\nwe must have recourse to the subject, to the words and circumstances of\na law, to determine when it is founded on such a presumption.[27]\n\nThe same rule applies to the interpretation of promises. For where they\nare made upon the supposition of a fact, which in the end proves not\nto be true, they lose the force of obligations. Because the promiser\nmade them upon certain conditions only, the fulfilment of which becomes\nimpossible. Cicero, in his first book on the talents and character of\nan orator, puts the case of a father, who, under the supposition or\nintelligence that his son was dead, promised to devise his property to\nhis nephew. But the supposition proving erroneous, and the intelligence\nfalse, the father was released from the obligation of the promise made\nto his relative. But if the promiser has neglected to examine the\nmatter, or has been careless in expressing his meaning, he will be\nbound to repair the damage which another has sustained on that account.\nThis obligation is not built on the strength of the promise, but on the\ninjury, which it has occasioned. An erroneous promise will be binding,\nif the error was not the OCCASION of the promise. For here there is\nno want of consent in the party, who made it. But if the promise was\nobtained by fraud, the person so obtaining it shall indemnify the\npromiser for the injury sustained, if there has been any partial error\nin the promise, yet in other respects it shall be deemed valid.\n\nVII. Promises extorted by fear are a subject of no less intricate\ndecision. For here too a distinction is usually made between a\nwell founded and a chimerical fear, between a just fear and a bare\nsuspicion, and between the persons who occasion it, whether it be the\nperson to whom the promise is given, or some other. A distinction\nis also made between acts purely gratuitous, and those in which\nboth parties have an interest. For according to all this variety of\ncircumstances some engagements are considered as void, others as\nrevocable at the pleasure or discretion of the maker, and others as\nwarranting a claim to indemnity for the inconvenience occasioned. But\non each of these points there is great diversity of opinion.\n\nThere is some shew of reason in the opinion of those who, without\ntaking into consideration the power of the civil law to annul or\ndiminish an obligation, maintain that a person is bound to fulfil a\npromise which he has given under impressions of fear. For even in\nthis case there was CONSENT, though it was extorted; neither was it\nconditional, as in erroneous promises, but absolute. It is called\nCONSENT. For as Aristotle has observed, those who consent to throw\ntheir goods overboard in a storm, would have saved them, had it\nnot been for the fear of shipwreck. But they freely part with them\nconsidering all the circumstances of time and place.\n\nVIII. To render a promise valid, it must be such as it is in the power\nof the promiser to perform. For which reason no promises to do illegal\nacts are valid; because no one either has, or ever can have a right to\ndo them. But a promise, as was said before, derives all its force from\nthe right of the promiser to make it, nor can it extend beyond that.\n\nIf a thing is not now in the power of the promiser, but may be so at\nsome future time; the obligation will remain in suspense. For the\npromise was only made under the expectation of some future ability\nto fulfil it. But if a person has a controul over the condition upon\nwhich the promise is made, to realise it or not, he lies under a moral\nobligation to use every endeavour to fulfil it. But in obligations of\nthis kind also, the civil law, from obvious motives of general utility,\noccasionally interposes its authority to make them void: obligations,\nwhich the law of nature would have confirmed.\n\nIX. The next general inquiry, for the most part, refers to the validity\nof promises made upon any immoral or unlawful consideration; as if,\nfor instance, any thing is promised to another on condition of his\ncommitting a murder. Here the very promise itself is wicked and\nunlawful, because it encourages the commission of a crime. But it does\nnot follow every FOOLISH or IMPROVIDENT promise loses the force of an\nobligation, as in the confirmation of imprudent or prodigal grants, for\nno further evil can result from a confirmation of what has been already\ngiven: and the invalidity of promises would be a greater evil than any\nthat could result from a confirmation of the most improvident. But in\npromises made upon IMMORAL and UNLAWFUL considerations, there is always\na criminality remaining, even while they continue unfulfilled. For\nduring the whole of that time, the expectation of fulfilment carries\nwith it the indelible mark of encouragement to the commission of a\ncrime.\n\nXII.[28] We are obliged to confirm the engagements made by others,\nacting in our name, if it is evident that they had special, or general\ninstructions from us to do so. And in granting a commission with full\npowers to any one, it may so happen that we are bound by the conduct\nof that agent, even if he exceed the secret instructions which he has\nreceived. For he acts upon that ostensible authority, by which we are\nbound to ratify whatever he does, although we may have bound him to do\nnothing but according to his private instructions. This rule, we must\nobserve, applies to the promises made by ambassadors in the name of\ntheir sovereigns, when, by virtue of their public credentials, they\nhave exceeded their private orders.\n\nXIII. From the preceding arguments, it is easy to understand how far\nowners of ships are answerable for the acts of the masters employed by\nthem in those vessels, or merchants for the conduct of their factors.\nFor natural equity will qualify the actions brought against them,\naccording to the instructions and powers which they give. So that we\nmay justly condemn the rigour of the Roman law, in making the owners\nof ships absolutely bound by all the acts of the masters employed. For\nthis is neither consonant to natural equity, which holds it sufficient\nfor each party to be answerable in proportion to his share, nor is it\nconducive to the public good. For men would be deterred from employing\nships, if they lay under the perpetual fear of being answerable for the\nacts of their masters to an unlimited extent. And therefore in Holland,\na country where trade has flourished with the greatest vigour, the\nRoman law has never been observed either now or at any former period.\nOn the contrary, it is an established rule that no action can be\nmaintained against the owner for any greater sum than the value of the\nship and cargo.\n\nFor a promise to convey a right, acceptance is no less necessary than\nin a transfer of property. And in this case there is supposed to have\nbeen a precedent request, which is the same as acceptance. Nor is this\ncontradicted by the promises which the civil law implies every one to\nhave made to the state, WITHOUT ANY REQUEST OR FORMAL ACCEPTANCE.\n\nXIV. A reason which has induced some to believe that the sole act of a\npromiser, by the law of nature, is sufficient. Our first position is\nnot contradicted by the Roman law. For it no where says, that a promise\nhas its full effect before acceptance, but only forbids the revocation\nof it which might prevent acceptance: and this effect results, not from\nNATURAL but from purely LEGAL rules.\n\nXV. Another question is, whether the acceptance alone of a promise is\nsufficient, or whether it ought to be communicated to the promiser\nbefore it can be made binding.\n\nIt is certain that a promise may be made two ways, either upon\ncondition of its being fulfilled, if accepted, or upon condition of its\nbeing ratified, if the promiser is apprised of its being accepted. And\nin cases of mutual obligation, it is presumed to be taken in the latter\nsense; but it is better to take promises that are purely gratuitous in\nthe former sense, unless there be evidence to the contrary.\n\nXVI. From hence it follows, that a promise may be revoked, without the\nimputation of injustice or levity, BEFORE ACCEPTANCE, as no right has\nyet been conveyed; especially if ACCEPTANCE were made the condition\nof its being fulfilled. It may be revoked too if the party to whom it\nwas made, should die before acceptance. Because it is evident that\nthe power to accept it or not, was conferred upon HIM, and not upon\nhis HEIRS. For to give a man a right, which may POSSIBLY descend to\nhis heirs, is one thing, and to express an intention of giving it to\nhis heirs is another. For it makes an essential difference upon what\nperson the favour is conferred. This is understood in the answer made\nby Neratius, who said, that he did not believe the prince would have\ngranted to one who was dead, what he granted, supposing him still alive.\n\nXVII. A promise may be revoked, by the death of the person appointed\nto communicate to a third the intention of the promiser. Because the\nobligation to the third person rested upon such communication. The\ncase is different, where a public messenger is employed, who is not\nhimself the obligatory instrument, but only the means through which it\nis conveyed. Therefore letters indicating a promise, or consent may be\nconveyed by any one. Yet there is a distinction to be made between a\nminister appointed to communicate a promise, and one appointed to make\nthe promise in his own name.\n\nFor in the former case, a revocation will be valid, even though it\nhas not been made known to the minister employed; but in the latter\ncase, it will be entirely void, because the right of promising was\ncommitted to the minister, and fully depended upon his will; therefore\nthe obligation of the promise was complete, as he knew of no intended\nrevocation. So also in the former case, where a second person is\ncommissioned to communicate the intentions of a donor to a third; even\nif the donor should die, the acceptance of the gift will be deemed\nvalid, all that was requisite being performed on one part; though till\nthat period the intention was revocable, as is evident in the case of\nbequests. But in the other case, where a person has received a full\ncommission to execute a promise during the LIFE of the donor, should\nthe donor die before the execution of it, and the person employed be\napprised of his death; the commission, the promise, and the acceptance\nof it will then, at once, become void.\n\nIn doubtful cases, it is reasonable to suppose that it was the\nintention of the promiser, that the commission which he gave should\nbe executed, unless some great change, as for instance, his own death\nshould occur. Yet reasons in favour of a contrary opinion may easily\nbe found and admitted, especially with respect to pious donations,\nwhich, at all events, ought to stand good. And in the same manner may\nbe decided the long disputed question, whether an action on account of\nsuch a bequest could be brought against the heir. Upon which the author\nof the second book to Herennius says, that Marcus Drusus the praetor\ndecided one way, and Sextus Julius another.\n\nXVIII. The acceptance of a promise for a third person is a matter\nsubject to discussion, in which there is a distinction to be observed\nbetween a promise made to a person of a thing, which is to be given to\nanother, and a promise made directly to the person himself, on whom\nthe former is to be conferred. If a promise is made to any one, where\nhis own personal interest is not concerned, a consideration introduced\nby the Roman law, by acceptance he seems naturally to acquire a right\nwhich may be transferred to another for HIS acceptance, and this right\nwill pass so fully, that in the mean time the promise cannot be revoked\nby the person who gave, though it may be released by him who received\nit. For that is a meaning by no means repugnant to the law of nature,\nand it is entirely conformable to the words of such a promise; nor can\nit be a matter of indifference to the person, through whom another is\nto receive a benefit.\n\nBut if a promise is made directly to one, on whom a thing is to be\nconferred, a distinction must be made, whether the person receiving\nsuch a promise has SPECIAL commission for acceptance, or one so GENERAL\nas to include acceptance, or has it not. When a commission has been\npreviously given, no farther distinction is necessary, whether the\nperson be free or not, a condition which the Roman laws require. But it\nis plain that from such an acceptance, let the condition of the person\nbe what it will, the promise is complete: because consent may be given\nand signified through the medium of another. For a person is supposed\nto have fully intended, what he has put into the power of another to\naccept or refuse.\n\nWhere there is no such commission, if another, to whom the promise\nwas not directly made, accepts it with the consent of the promiser,\nthe promise will be so far binding, that the promiser will not be at\nliberty to revoke it, before the person, in whose favour it was made\nhas ratified, and afterwards chosen to release the engagement. Yet, in\nthe mean time, the accepter cannot release it, as having derived no\npeculiar right from it himself, but only been used as an instrument\nin promoting the kind intentions and good faith of the promiser. The\npromiser therefore himself, by revoking it, is not doing violence to\nthe perfect right of another, but only acting in contradiction his own\ngood faith.\n\nXIX. From what has been said before, it is easy to conceive what\nopinion ought to be entertained of a burdensome condition annexed to\na promise. For it may be annexed at any time, till a promise has been\ncompleted by acceptance, or an irrevocable pledge to fulfil it has been\ngiven. But the condition of a burden annexed to a favour intended to\nbe conferred upon a third person, through the medium of any one, may\nbe revoked before the person has confirmed it by his acceptance. On\nthis point there is great difference of opinion. But upon impartial\nconsideration the natural equity of any case may be easily seen without\nany great length of arguments.\n\nXX. XXI. XXII. Another point of discussion relates to the validity of\nan erroneous promise, when the person, who made it, upon being apprised\nof his error is willing to adhere to his engagement. And the same\ninquiry applies to promises, which, arising out of fear or any other\nsuch motive, are prohibited by the civil law. What, it may be asked,\nwill become of these promises, if that fear, or that motive has been\nremoved?\n\nTo confirm such obligations, some think an internal consent of the mind\nalone in conjunction with some previous external act is sufficient.\nOthers disapprove of this opinion, because they do not admit that an\nexternal act is a real sign of a subsequent intention. Therefore they\nrequire an express repetition of the promise and acceptance. Between\nthese two opinions, the truth is most likely to be found. There may\nbe an external act expressive of a promise, though unaccompanied with\nwords; where one party's accepting and retaining a gift, and the\nother's relinquishing his right in it are sufficient to constitute a\nfull consent.\n\nTo prevent civil laws from being confounded with natural justice, we\nmust not omit noticing, in this place, that promises though founded in\nno EXPRESS motive, are not, any more than gifts, void by the law of\nnature.\n\nNor is a person who has engaged for another's performing any thing,\nbound to pay damages and interest for neglect, provided he has done\nevery thing that was necessary on his part towards obtaining its\naccomplishment. Unless the express terms of the agreement, or the\nnature of the business require a stricter obligation, positively\ndeclaring that, under all circumstances whatever, the thing shall be\nperformed.\n\n\n\n\nCHAPTER XII.\n\nON CONTRACTS.\n\n Human actions divided into simple or mixed--Gratuitous,\n or accompanied with mutual obligation--Acts by way\n of exchange, adjustment of what is to be given or\n done--Partnership--Contracts--Previous equality--As to knowledge\n of all circumstances--As to freedom of consent, requisite in\n contracts of exchange, of sale, of commission and loan--Price\n of things in what manner to be rated--Transfer of property by\n sale--What kind contrary to the law of nature--Money--Its use as\n the standard value of all things--No abatement in the rent or hire\n of a thing on account of ordinary accidents--Increase or diminution\n of just salaries--Usury, by what law forbidden--Interest not\n coming under the name of usury--Insurance--Partnerships of Trade,\n Naval Associations--Inequality in the terms of a contract no way\n repugnant to the law of nations.\n\n\nI. and II. Of all human actions, wherein the interest of others is\nconcerned, some are simple, and some are mixed. In those of the former\ndescription all service is purely gratuitous, but in the latter it is\na traffic of exchange. In the one case the service is granted without\na requital, but in the other it is accompanied with an obligation on\nboth sides. Gratuitous services are either immediate in their effect,\nor to take place at some future time. A beneficial service may be said\nto be immediately performed, when it confers an advantage, to which\nthe person so benefitted has no direct or absolute right. As a gift\ntransfers property, where there is no previous right. A subject, which\nhas been already discussed. And promises may be said to relate to some\nfuture gift, or action, of which a full and sufficient explanation has\nbefore been given.\n\nServices accompanied with mutual obligation are those where the use\nof a thing is allowed to any one without a complete alienation, or\nwhere labour is given in expectation of some valuable consideration.\nUnder the first of these heads we may reckon the loan and use of all\nconsumable or inconsumable property: and under the latter we may place\nall commissions to transact business, or all trusts to preserve the\nproperty of another. Similar to which are all promises of something to\nbe done, except that they regard a future time. And in this view we\nmay consider all the actions, which are now to be explained.\n\nIII. In all acts of exchange, there is either an adjustment of shares,\nor the profits are regarded as a common stock. And such adjustments\nare made by the Roman Lawyers in the following terms, \"I give this\nto receive that in return, I do this in order for you to do that, or\nI do this for you to give me that.\"[29] But the Romans exclude from\nthat adjustment certain kinds of contracts, which they call EXPRESS\nENGAGEMENTS. Not because they are entitled to any such peculiar name\nmore than the simple acts of exchange already mentioned: but because\nfrom frequent use they have naturally derived a character similar to\nthat of the original contract, from which they are named, though they\nare not attended exactly with the same circumstances, nor expressed\ndirectly in the same terms. Whereas in other contracts less frequently\nin use, the form was confined to an exact statement of all the\ncircumstances of the case. An action upon which was therefore called by\nthe Roman law an ACTION IN PRESCRIBED WORDS.\n\nFor the same reason, if those contracts, which are in general use, be\naccompanied with any of the requisite formalities, as in a bargain\nor sale, if the price had been agreed upon, though no part of the\nagreement had been performed by either of the parties, the civil law\nenforced an obligation to fulfil them. But as it considers those\ncontracts which are seldom used, more in the light of voluntary\nengagements, depending upon the good faith of the respective parties,\nthan upon legal obligation, it leaves both sides at liberty to\nrelinquish them at any time prior to their being naturally performed.\n\nDistinctions of this kind are unknown to the law of nature, which\ngives SIMPLE AGREEMENTS equal authority with those, that are included\nby civilians in the class of EXPRESS CONTRACTS. And on the score of\nantiquity their pretensions are far superior. It is therefore perfectly\nconformable to the principles of nature to reduce the adjustment of\nall agreements, without any regard to the distinction between SIMPLE\nand EXPRESS CONTRACTS, to the three species already named. Thus, for\ninstance, one thing is given for another, which constitutes barter,\nthe most ancient kind of traffic; the next step in the progress of\ncommercial intercourse is where one kind of money is given for another,\na transaction which by merchants is called exchange; and a third\nspecies of contract is where money is given for any thing, as in the\nacts of selling and buying. Or the USE of one thing may be given for\nthat of another; money also may be given for the USE of a thing, which\nlast method constitutes the acts of letting and hiring.\n\nThe term use is to be understood here as applied not only to the bare\nunproductive use of a thing, but to that which is attended with profit,\nwhether it be temporary, personal, hereditary or circumscribed, as\nwas the case among the Hebrews with regard to transfers, which could\nbe made for no longer a time than till the year of Jubilee. The very\nessence of a loan consists in a return of the same kind of thing\nafter a stated period. A return which can take place only in things\nregulated by weight, number, or measure, whether it be in commodities\nor money. But the exchange of labour branches out into various kinds of\nrecompence or return. As, for instance, a person gives his labour for\nmoney, which in the daily transactions of life is called hire or wages:\nwhere one undertakes to indemnify another for accidental losses or\ndamages, it is called insurance: a species of contract scarce known to\nthe ancients, but now forming a very important branch in all mercantile\nand maritime concerns.\n\nIV. Acts of communication are those, where each contributes a share\nto the joint stock. Perhaps on one side, money, and on the other,\nskill and labour may be given. But in whatever way these concerns are\nregulated, they come under the denomination of partnerships. With this\nclass we may rank the alliances of different states in war. And of\nthe same description are those naval associations of individuals, so\nfrequently formed in Holland for protection against pirates or other\ninvaders, which is generally called an ADMIRALTY, and to which the\nGreeks gave the name of a joint fleet.\n\nV. and VI. Now mixed actions are either such in themselves, or made so\nby some adventitious circumstance. Thus if I knowingly give one person\na greater price for a thing than I can purchase it for of another, the\nexcess of price may be considered partly as a gift, and partly as a\npurchase. Or if I engage a goldsmith to make me any article with his\nown materials, the price which I give will be partly a purchase, and\npartly wages. The feudal system too might be considered as a train of\nmixed contracts. Where the grant of the fee might be considered as\na beneficial act; but the military service required by the Lord, in\nreturn for his protection, gave the fee the nature of a contract, where\na person did one thing expecting for it the performance of another. But\nif any payment is attached to it by way of acknowledgement, it partakes\nof the nature of a quit rent. So money sent to sea by way of venture is\nsomething compounded of a contract, of a loan, and of an insurance.\n\nVII. All acts beneficial to others, except those that are purely\ngratuitous, come under the denomination of contracts.\n\nVIII. In all contracts, natural justice requires that there should be\nan equality of terms: insomuch that the aggrieved party has an action\nagainst the other for overreaching him. This equality consists partly\nin the performance, and partly in the profits of the contract, applying\nto all the previous arrangements, and to the essential consequences of\nthe agreement.\n\nIX. As to an equality of terms previous to the contract, it is evident\nthat a seller is bound to discover to a purchaser any defects,\nwhich are known to him, in a thing offered for sale; a rule not\nonly established by civil laws, but strictly conformable to natural\njustice. For the words of agreement between contracting parties are\neven stronger than those, on which society is founded. And in this\nmanner may be explained the observation of Diogenes the Babylonian,\nwho in discussing this topic said, it is not every degree of silence,\nwhich amounts to concealment; nor is one person bound to disclose\nevery thing, which may be of service to another. Thus for instance, a\nman of science is not strictly bound to communicate to another that\nknowledge, which might redound to his advantage. For contracts, which\nwere invented to promote a beneficial intercourse among mankind,\nrequire some closer and more intimate connection than bare good-will\nto enforce their obligation. Upon which Ambrose has justly remarked,\n\"that, in contracts, the faults of things exposed to sale ought to be\nmade known, of which unless the seller has given intimation, though he\nmay have transferred the right of property by sale, yet he is liable to\nan action of fraud.\"\n\nBut the same cannot be said of things not coming under the nature\nof contracts. Thus if any one should sell his corn at a high price,\nwhen he knows that many ships laden with grain are bound for that\nplace, though it would be an act of kindness in him to communicate\nsuch intelligence to the purchasers, and though no advantage could be\nderived to him, from withholding the communication, but at the expence\nof charity, yet there is nothing unjust in it, or contrary to the\ngeneral rules of dealing. The practice is vindicated by Diogenes in\nthe passage of Cicero alluded to, he says, \"I carried my commodities\nand offered them to sale, in selling them I demanded no greater price\nthan others did; if the supply had been greater I would have sold them\nfor less, and where is the wrong done to any one?\" The maxim of Cicero\ntherefore cannot generally be admitted, that, knowing a thing yourself,\nto wish another, whose interest it is to know it also, to remain\nignorant of it, merely for the sake of your own advantage, amounts to\na fraudulent concealment. By no means; for that only is a fraudulent\nconcealment which immediately affects the nature of the contract:\nas for instance, in selling a house, to conceal the circumstance of\nits being infected with the plague, or having been ordered by public\nauthority to be pulled down. But it is unnecessary to mention, that\nthe person, with whom a seller treats, ought to be apprised of every\ncircumstance attending the thing offered for sale; if it be lands,\nwhether the tenure be subject to a rent-charge, or service of any kind,\nor be entirely free.\n\nX. and XI. Nor is the equality that has been explained confined solely\nto the communication of all the circumstances of the case to the\ncontracting parties, but it includes also an entire freedom of consent\nin both.\n\nIn the principal act itself, the proper equality requires that no more\nshould be demanded either party than what is just. Which can scarce\nhave a place in gratuitous acts. To stipulate for a recompence in\nreturn for a loan, or for the service of labour or commission is doing\nno wrong, but constitutes a kind of mixed contract, partaking of the\nnature of a gratuitous act, and an act of exchange. And in all acts\nof exchange, this equality is to be punctually observed. Nor can it\nbe said that if one party promises more, it is to be looked upon as a\ngift. For men never enter into contracts with such intentions, nor\nought the existence of such intentions ever be presumed, unless they\nevidently appear. For all promises or gifts, in these cases, are made\nwith an expectation of receiving an equivalent in return. \"When, _in\nthe words of Chrysostom_, in all bargains and contracts, we are anxious\nto receive MORE and give LESS than is due, what is this but a species\nof fraud or robbery?\" The writer of the life of Isidorus in Photius,\nrelates of Hermias, that when any thing, which he wished to purchase\nwas valued at too low a rate, he made up the deficiency of the price,\nthinking that to act otherwise was a species of injustice, though it\nmight escape the observation of others. And in this sense, may be\ninterpreted the law of the Hebrews.\n\nXII. There remains another degree of equality to be considered, arising\nout of the following case. It may happen in contracts that although\nnothing is concealed, which ought to be made known, nor more exacted\nor taken by one party than is due, yet there may be some inequality\nwithout any fault in either of the parties. Perhaps, for instance there\nmight be some unknown defect in the thing, or there might be some\nmistake in the price. Yet, in such cases, to preserve that equality,\nwhich is an essential requisite in all contracts, the party suffering\nby such defect or mistake, ought to be indemnified by the other. For in\nall engagements it either is, or ought to be a standing rule, that both\nparties should have equal and just advantages.\n\nIt was not in every kind of equality that the Roman law established\nthis rule, passing over slight occasions, in order to discourage\nfrequent and frivolous litigation. It only interposed its judicial\nauthority in weighty matters, where the price exceeded the just value\nby one half. Laws indeed, as Cicero has said, have power to compel, or\nrestrain men, whereas philosophers can only appeal to their reason or\nunderstanding. Yet those, who are not subject to the power of civil\nlaws ought to comply with whatever reason points out to them to be\njust: So too ought they, who are subject to the power of human laws, to\nperform whatever natural and divine justice requires, even in cases,\nwhere the laws neither give nor take away the right, but only forbear\nto enforce it for particular reasons.\n\nXIII. There is a certain degree of equality, too, in beneficial or\ngratuitous acts, not indeed like that prevailing in contracts of\nexchange, but proceeding upon a supposition of the hardship, that\nany one should receive detriment from voluntary services, which he\nbestows. For which reason a voluntary agent ought to be indemnified\nfor the expence or inconvenience, which he incurs, by undertaking the\nbusiness of another. A borrower too is bound to repair a thing that has\nbeen damaged or destroyed. Because he is bound to the owner not only\nfor the thing itself, by virtue of the property which he retains in\nit, but he owes a debt of gratitude also for the favour of the loan;\nunless it appears that the thing so lent would have perished, had it\neven remained in possession of the owner himself. In this case, the\nowner loses nothing by the loan. On the other hand, the depositary has\nreceived nothing but a trust. If the thing therefore is destroyed, he\ncannot be bound to restore what is no longer in existence, nor can he\nbe required to make a recompence, where he has derived no advantage;\nfor in taking the trust he did not receive a favour, but conferred\none. In a pawn, the same as in a thing let out for hire, a middle way\nof deciding the obligation may be pursued, so that the person taking\nit is not answerable, like a borrower, for every accident, and yet he\nis obliged to use greater care, than a bare depositary, in keeping\nit safe. For though taking a pledge is a gratuitous acceptance, it\nis followed by some of the conditions of a contract. All these cases\nare conformable to the Roman law, though not originally derived from\nthence, but from natural equity. Rules, all of which may be found among\nother nations. And, among other works, we may refer to the third book\nand forty-second chapter of the GUIDE FOR DOUBTFUL CASES, written by\nMoses Maimonides, a Jewish writer.\n\nUpon the same principles the nature of all other contracts may be\nexplained; but the leading features in those of certain descriptions\nseemed sufficient for a treatise like the present.\n\nXIV. The general demand for any thing, as Aristotle has clearly\nproved, constitutes the true measure of its value, which may be seen\nparticularly from the practice prevailing among barbarous nations of\nexchanging one thing for another. But this is not the only standard:\nfor the humours and caprice of mankind, which dictate and controul all\nregulations, give a nominal value to many superfluities. It was luxury,\nsays Pliny, that first discovered the value of pearls, and Cicero has\nsomewhere observed, that the worth of such things can only be estimated\nby the desires of men.\n\nBut on the other hand, it happens that the plentiful supply of\nnecessaries lowers their price. This Seneca, in the 15th chapter of his\nsixth book on benefits, proves by many instances, which he concludes\nwith the following observation, \"the price of every thing must be\nregulated by the market, and notwithstanding all your praises, it is\nworth nothing more than it can be sold for.\" To which we may add the\nauthority of Paulus the Lawyer, who says, the prices of things do not\ndepend upon the humours and interest of individuals, but upon common\nestimation, that is, as he explains himself elsewhere, according to the\nworth which they are of to all.\n\nHence it is that things are valued in proportion to what is usually\noffered or given for them, a rule admitting of great variation and\nlatitude, except in certain cases, where the law has fixed a standard\nprice. In the common price of articles, the labour and expence of the\nmerchant in procuring them is taken into the account, and the sudden\nchanges so frequent in all markets depend upon the number of buyers,\nwhether it be great or small, and upon the money and marketable\ncommodities, whether they be plentiful or scarce.\n\nThere may indeed be casualties, owing to which a thing may be lawfully\nbought or sold above or below the market price. Thus for instance, a\nthing by being damaged may have lost its original or common value, or\nthat, which otherwise would not have been disposed of, may be bought or\nsold from some particular liking or aversion. All these circumstances\nought to be made known to the contracting parties. Regard too should be\nhad to the loss or gain arising from delay or promptness of payment.\n\nXV. In buying and selling we must observe, that the bargain is\ncompleted from the very moment of the contract, even without delivery,\nand that is the most simple way of dealing. Thus Seneca says, that a\nsale is a transfer of one's right and property in a thing to another,\nwhich is done in all exchanges. But if it be settled that the property\nshall not be transferred immediately, still the seller will be bound to\nconvey it at the stated period, taking in the mean time all the profits\nand losses.\n\nWhereas the completion of bargain and sale, by giving the purchaser\na right of possession and ejectment, and conveying to him the hazard\nwith all the profits of the property, even before it is transferred,\nare regulations of the civil law not universally observed. Indeed\nsome legislators have made the seller answerable for all accidents\nand damages, till the actual delivery of possession is made, as\nTheophrastus has observed in a passage in Stobaeus, under the title\nof laws, where the reader will find many customs, relating to the\nformalities of sale, to earnest, to repentance of a bargain, very\ndifferent from the rules of the Roman law. And among the Rhodians, Dion\nPrusaeensis informs us that all sales and contracts were confirmed by\nbeing entered in a public register.\n\nWe must observe too that, if a thing has been twice sold, of the two\nsales the one is valid, where an immediate transfer of the property has\nbeen made, either by delivery of possession, or in any other mode. For\nby this means the seller gives up an absolute right, which could not\npass by a promise alone.\n\nXVI. It is not every kind of monopoly that amounts to a direct\nviolation of the laws of nature. The Sovereign power may have very just\nreasons for granting monopolies, and that too at a settled price: a\nnoble instance of which we find in the history of Joseph, who governed\nEgypt under the auspices of Pharaoh.[30] So also under the Roman\ngovernment the people of Alexandria, as we are informed by Strabo,\nenjoyed the monopoly of all Indian and Ethiopian goods.\n\nA monopoly also may, in some cases, be established by individuals,\nprovided they sell at a reasonable rate. But all combinations to raise\nthe necessary articles of life to an exorbitant rate, or all violent\nand fraudulent attempts to prevent the market from being supplied,\nor to buy up certain commodities, in order to enhance the price, are\npublic injuries and punishable as such.[31] Or indeed ANY WAY of\npreventing the importation of goods, or buying them up in order to\nsell them at a greater rate than usual, though the price, UNDER SOME\nPARTICULAR CIRCUMSTANCES, may not seem unreasonable, is fully shewn by\nAmbrose in his third book of Offices to be a breach of charity; though\nit come not directly under the prohibition of laws.\n\nXVII. As to money, it may be observed that its uses do not result\nfrom any value intrinsically belonging to the precious metals, or to\nthe specific denomination and shape of coin, but from the general\napplication which can be made of it, as a standard of payment for all\ncommodities. For whatever is taken as a common measure of all other\nthings, ought to be liable, in itself, to but little variation. Now the\nprecious metals are of this description, possessing nearly the same\nintrinsic value at all times and in all places. Though the nominal\nvalue of the same quantity of gold and silver, whether paid by weight\nor coin will be greater or less, in proportion to the abundance or\nscarcity of the things for which there is a general demand.\n\nXVIII. Letting and hiring, as Caius has justly said, come nearest to\nselling and buying, and are regulated by the same principles. For the\nprice corresponds to the rent or hire, and the property of a thing to\nthe liberty of using it. Wherefore as an owner must bear the loss of\na thing that perishes, so a person hiring a thing or renting a farm\nmust bear the loss of all ordinary accidents, as for instance, those\nof barrenness or any other cause, which may diminish his profits.[32]\nNor will the owner, on that account, be the less entitled to the\nstipulated price or rent, because he gave the other the right of\nenjoyment, which at that time was worth so much, unless it was then\nagreed that the value should depend upon such contingencies.\n\nIf an owner, when the first tenant has been prevented from using a\nthing, shall have let it to another, all the profits accruing from it\nare due to the first tenant, for it would not be equitable that the\nowner should be made richer by what belonged to another.\n\nXIX. The next topic, that comes under consideration, is the lawfulness\nof taking interest for the use of a consumable thing; the arguments\nbrought against which appear by no means such as to command our assent.\nFor as to what is said of the loan of consumable property being a\ngratuitous act, and entitled to no return, the same reasoning may\napply to the letting of inconsumable property for hire, requiring a\nrecompence for the use of which is never deemed unlawful, though it\ngives the contract itself a different denomination.\n\nNor is there any more weight in the objection to taking interest for\nthe use of money, which in its own nature is barren and unproductive.\nFor the same may be said of houses and other things, which are\nunproductive and unprofitable without the industry of man.[33]\n\nThere is something more specious in the argument, which maintains,\nthat, as one thing is here given in return for another, and the use and\nprofits of a thing cannot be distinguished from the thing itself, when\nthe very use of it depends upon its consumption, nothing more ought to\nbe required in return for the use, than what is barely equivalent to\nthe thing itself.\n\nBut it is necessary to remark, that when it is said the enjoyment of\nthe profits of consumable things, whose property is transferred, in\nthe use, to the borrower or trustee, was introduced by an act of the\nsenate, this does not properly come under the notion of Usufruct, which\ncertainly in its original signification answers to no such right.\nYet it does not follow that such a right is of no value, but on the\ncontrary money may be required for surrendering it to the proprietor.\nThus also the right of not paying money or wine borrowed till after a\ncertain time is a thing whose value may be ascertained, the delay being\nconsidered as some advantage. Therefore in a mortgage the profits of\nthe land answer the use of money. But what Cato, Cicero, Plutarch and\nothers allege against usury, applies not so much to the nature of the\nthing, as to the accidental circumstances and consequences with which\nit is commonly attended.[34]\n\nXX. There are some kinds of interest, which are thought to wear the\nappearance of usury, and generally come under that denomination,\nbut which in reality are contracts of a different nature. The five\nshillings commission which a banker, for instance, charges upon\nevery hundred pounds, is not so much an interest in addition to five\nper cent, as a compensation for his trouble, and for the risk and\ninconvenience he incurs, by the loan of his money, which he might have\nemployed in some other lucrative way. In the same manner a person who\nlends money to many individuals, and, for that purpose, keeps certain\nsums of cash in his hands, ought to have some indemnity for the\ncontinual loss of interest upon those sums, which may be considered\nas so much dead stock. Nor can any recompence of this kind be branded\nwith the name of usury. Demosthenes, in his speech against Pantaenetus,\ncondemns it as an odious act of injustice, to charge with usury a man,\nwho in order to keep his principal undiminished, or to assist another\nwith money, lends out the savings of his industry and frugal habits,\nupon a moderate interest.\n\nXXI. Those human laws, which allow a compensation to be made for the\nuse of money or any other thing, are neither repugnant to natural nor\nrevealed law. Thus in Holland, where the rate of interest upon common\nloans was eight per cent, there was no injustice in requiring twelve\nper cent of merchants; because the hazard was greater. The justice and\nreasonableness indeed of all these regulations must be measured by the\nhazard or inconvenience of lending. For where the recompence exceeds\nthis, it becomes an act of extortion or oppression.\n\nXXII. Contracts for guarding against danger, which are called\ninsurances, will be deemed fraudulent and void, if the insurer knows\nbeforehand that the thing insured is already safe, or has reached its\nplace of destination, and the other party that it is already destroyed\nor lost. And that not so much on account of the equality naturally\nrequisite in all contracts of exchange, as because the danger and\nuncertainty is the very essence of such contract. Now the premium upon\nall insurances must be regulated by common estimation.[35]\n\nXXIII. In trading partnerships, where money is contributed by both\nparties; if the proportions be equal, the profits and the losses ought\nto be equal also. But if they be unequal, the profits and the losses\nmust bear the same proportion, as Aristotle has shewn at the conclusion\nof the eighth book of his Ethics. And the same rule will hold good\nwhere equal or unequal proportions of labor are contributed. Labor\nmay be given as a balance against money, or both labor and money may\nbe given, according to the general maxim that one man's labour is an\nequivalent for another man's money.\n\nBut there are various ways of forming these agreements. If a man\nborrows money to employ his skill upon in trading for himself, whether\nhe gains or loses the whole, he is answerable to the owner for the\nprincipal. But where a man unites his labor to the capital of another\nin partnership, there he becomes a partner in the principal, to a share\nof which he is entitled. In the first of these cases the principal is\nnot compared as a balance against the labor, but it is lent upon terms\nproportioned to the risk of losing it, or the probable gains to be\nderived from it. In the other case, the price of labour is weighed, as\nit were, against the money, and the party who bestows it, is entitled\nto an equivalent share in the capital.\n\nWhat has been said of labour may be applied to voyages, and all\nother hazardous undertakings. For it is contrary to the very nature\nof partnerships for any one to share in the gain, and to be exempt\nfrom the losses. Yet it may be so settled without any degree of\ninjustice. For there may be a mixed contract arising out of a contract\nof insurance in which due equality may be preserved, by allowing the\nperson, who has taken upon himself the losses, to receive a greater\nshare of the gain than he would otherwise have done. But it is a thing\nquite inadmissible that any one should be responsible for the losses\nwithout partaking of the gains; for a communion of interests is so\nnatural to society that it cannot subsist without it.\n\nWhat has been said by writers on the civil law, that the shares are\nunderstood to be equal where they are not expressly named, is true\nwhere equal quotas have been contributed. But in a GENERAL partnership\nthe shares are not to be measured by what may arise from this or that\narticle, but from the probable profits of the whole.\n\nXXIV. In naval associations the common motive of utility is\nself-defence against pirates: though they may sometimes be formed from\nless worthy motives. In computing the losses to be sustained by each,\nit is usual to estimate the number of men, the number of ships, and the\nquantity of merchandise protected. And what has hitherto been said will\nbe found conformable to natural justice.\n\nXXV. Nor does the voluntary[36] law of nations appear to make any\nalteration here. However, there is one exception, which is, that where\nequal terms have been agreed upon, if no fraud has been used, nor any\nnecessary information withheld, they shall be considered as equal in\nan external[37] point of view. So that no action can be maintained\nin a court for such inequality. Which was the case in the civil law\nbefore Dioclesian's constitution. So among those, who are bound by the\nlaw of nations alone, there can be no redress or constraint on such\naccount.[38]\n\nAnd this is the meaning of what Pomponius says, that in a bargain and\nsale, one man may NATURALLY overreach another: an allowance which is\nnot to be construed, as a right, but is only so far a permission, that\nno legal remedy can be used against the person, who is determined to\ninsist upon the agreement.\n\nIn this place, as in many others, the word natural signifies nothing\nmore than what is received by general custom. In this sense the Apostle\nPaul has said, that it is naturally disgraceful for a man to wear long\nhair; a thing, in which there is nothing repugnant to nature, but which\nis the general practice among some nations. Indeed many writers, both\nsacred and profane, give the name of NATURAL to what is only CUSTOMARY\nand HABITUAL.\n\n\n\n\nCHAPTER XIII.\n\nON OATHS.\n\n Efficacy of oaths among Pagans--Deliberation requisite in\n oaths--The sense, in which oaths are understood to be taken, to\n be adhered to--To be taken according to the usual meaning of the\n words--The subject of them to be lawful--Not to counteract moral\n obligations--In what sense oaths are an appeal to God--The purport\n of oaths--To be faithfully observed in all cases--The controul\n of sovereigns over the oaths of subjects--Observations on our\n Saviour's prohibition of oaths--Forms substituted for oaths.\n\n\nI. The sanctity of an oath with regard to promises, agreements, and\ncontracts, has always been held in the greatest esteem, in every age\nand among every people. For as Sophocles has said in his Hippodamia,\n\"The soul is bound to greater caution by the addition of an oath. For\nit guards us against two things, most to be avoided, the reproach of\nfriends, and the wrath of heaven.\" In addition to which the authority\nof Cicero may be quoted, who says, our forefathers intended that an\noath should be the best security for sincerity of affirmation, and the\nobservance of good faith. \"For, _as he observes in another place_,\nthere can be no stronger tie, to the fulfilment of our word and\npromise, than an oath, which is a solemn appeal to the testimony of\nGod.\"\n\nII. The next point, to be considered, is the original force and extent\nof oaths.\n\nAnd in the first place the arguments, that have been used respecting\npromises and contracts, apply to oaths also, which ought never to be\ntaken but with the most deliberate reflection and judgment. Nor can any\none lawfully take an oath, with a secret intention of not being bound\nby it. For the obligation is an inseparable and necessary consequence\nof an oath, and every act accompanied with an obligation is supposed to\nproceed from a deliberate purpose of mind. Every one is bound likewise\nto adhere to an oath in that sense, in which it is usually understood\nto be taken. For an oath being an appeal to God, should declare the\nfull truth in the sense in which it is understood. And this is the\nsense upon which Cicero insists that all oaths should be performed and\nadhered to in that sense, in which the party imposing them intended\nthey should be taken. For although in other kinds of promises a\ncondition may easily be implied, to release the promiser; yet that is a\nlatitude by no means admissible in an oath. And on this point an appeal\nmay be made to that passage, where the admirable writer of the Epistle\nto the Hebrews has said, GOD WILLING more abundantly to shew unto the\nheirs of the promise the immutability of his counsel confirmed it by an\noath: that by two immutable things, in which it was impossible for God\nto deceive, we might have a strong consolation. In order to understand\nthese words, we must observe that the sacred writers, in speaking of\nGod, often attribute to him human passions, rather in conformity to\nour finite capacities, than to his infinite nature. For God does not\nactually change his decrees, though he may be said to do so, and to\nrepent, whenever he acts otherwise than the words seemed to indicate,\nthe occasion, on which they were delivered, having ceased. Now this\nmay easily be applied in the case of threats, as conferring no right;\nsometimes too in promises, where a condition is implied. The Apostle\ntherefore names two things denoting immutability, a promise which\nconfers a right, and an oath, which admits of no mental reservations.\n\nFrom the above arguments it is easy to comprehend what is to be thought\nof an oath fraudulently obtained. For if it is certain that a person\ntook the oath upon a supposition, which afterwards was proved to have\nno foundation, and but for the belief of which he would never have\ntaken it, he will not be bound by it. But if it appears that he would\nhave taken it without that supposition; he must abide by his oath,\nbecause oaths allow of no evasion.\n\nIII. The meaning of an oath should not be stretched beyond the usual\nacceptation of words. Therefore there was no breach of their oath in\nthose, who, having sworn that they would not give their daughters in\nmarriage to the Benjamites, permitted those that had been carried off\nto live with them. For there is a difference between giving a thing,\nand not recovering that which is lost.\n\nIV. To give validity to an oath, the obligation, which it imposes ought\nto be lawful. Therefore a sworn promise, to commit an illegal act, to\ndo any thing in violation of natural or revealed law, will be of no\neffect.\n\nV. Indeed if a thing promised upon oath be not actually illegal, but\nonly an obstruction to some greater moral duty, in that case also the\noath will not be valid. Because it is a duty which we owe to God not to\ndeprive ourselves of the freedom of doing all the good in our power.\n\nVI. Oaths may differ in form, and yet agree in substance. For they all\nought to include an appeal to God, calling upon him to witness the\ntruth, or to punish the falsehood of their assertions, both of which\namount to the same thing. For an appeal to the testimony of a superior,\nwho has a right to punish, is the same as requiring him to avenge an\nact of perfidy. Now the omniscience of God gives him power to punish,\nas well as to witness every degree of falsehood.\n\nVII. It was a custom with the ancients to swear by persons or beings\nexpressly distinct from the supreme creator, either imprecating the\nwrath of those by whom they swore, whether it were the sun, the\nheavens, or the earth; or swearing by their own heads, by their\nchildren, their country or their prince, and calling for destruction\nupon THEM, if there were any falsehood in their oaths.\n\nNor was this practice confined to Heathen nations only, but, as we\nare informed by Philo, it prevailed among the Jews. For he says that\nwe ought not, in taking an oath upon every occasion, to have recourse\nto the maker and father of the universe, but to swear by our parents,\nby the heavens, the earth, the universe. Thus Joseph is said to have\nsworn by the life of Pharaoh, according to the received custom of the\nEgyptians. Nor does our Saviour, in the fifth chapter of St. Matthew's\nGospel, intend, as it is supposed by some, to consider these oaths to\nbe less binding than those taken expressly by the name of God. But\nas the Jews were too much inclined to make use of, and yet disregard\nthem, he shews them that they are real oaths. For, as Ulpian has well\nobserved, he who swears by his own life, seems to swear by God, bearing\na respect and reference to his divine power. In the same manner Christ\nshews that he, who swears by the temple, swears by God who presides in\nthe temple, and that he who swears by Heaven, swears by God, who sits\nupon the Heavens. But the Jewish teachers of that day thought that men\nwere not bound by oaths made in the name of created beings, unless\nsome penalty were annexed, as if the thing, by which they swore, were\nconsecrated to God. For this is the kind of oath implied in the word\n\u03ba\u03bf\u03c1\u03b2\u1fb6\u03bd {korban} as BY A GIFT. And it is this error of theirs, which\nChrist refutes.\n\nVIII. The principal effect of oaths is to cut short disputes. \"An oath\nfor confirmation, _as the inspired writer of the Epistle to the Hebrews\nhas said_, is the end of all strife.\" So too we find in Diodorus\nSiculus, that an oath was regarded among the Egyptians as the surest\npledge of sincerity that men could give. So that every one, in taking\nan oath, should express the real purpose of his mind, and render his\nactions conformable to those expressions. There is a beautiful passage\non this subject, in Dionysius of Halicarnassus, who says, \"the last\npledge among men, whether Greeks or Barbarians, and it is a pledge,\nwhich no time can blot out, is that which takes the Gods, as witnesses\nto oaths and covenants.\"\n\nIX. The substance of an oath too should be such, and conceived in such\nwords, as to include not only the divine, but the human obligations,\nwhich it implies. For it should convey to the person, who receives it,\nthe same security for his right, as he would derive from an express\npromise or a contract. But if either the words bear no reference to a\nperson so as to confer upon him a right, or if they do refer to him but\nin such a manner that some opposition may be made to his claim, the\nforce of the oath will, in that case, be such as to give that person no\nright from it; yet he who has taken it must still submit to the divine\nobligation, which the oath imposes. An example of which we have in a\nperson, from whom a sworn promise has been extorted by fear. For here\nthe oath conveys no right, but what the receiver ought to relinquish,\nfor it has been obtained to the prejudice of the giver. Thus we find\nthe Hebrew Kings were reproved by the prophets, and punished by God for\nnot observing the oaths, which they had taken to the kings of Babylon.\n\nX. The same rule applies not only to transactions between public\nenemies, but to those between any individuals whatsoever. For he, to\nwhom the oath is taken, is not the only person to be considered; but\na solemn regard must be paid to God, in whose name the oath is taken,\nand who possesses authority to enforce the obligation. For which reason\nit is impossible to admit the position of Cicero, that it is no breach\nof an oath to refuse paying to robbers the sum stipulated for having\nspared one's life; because such men are not to be ranked in the number\nof lawful enemies, but treated as the common enemies of all mankind, so\nthat towards them no faith ought to be kept, nor even the sanctity of\nan oath observed.\n\nXI. The power of superiors over inferiors, that is of sovereigns over\nsubjects, with respect to oaths, is the next topic that comes under\nconsideration. Now the act of a superior cannot annul the perfect\nobligation of an oath, which rests upon natural and revealed law. But\nas we are not, in a state of civil society, entirely masters of our\nown actions, which in some measure depend upon the direction of the\nsovereign power, which has a twofold influence with respect to oaths,\nin the one case applying to the person who takes, and in the other, to\nthe person who receives them. This authority may be exercised over the\nperson taking the oath, either by declaring, before it is taken, that\nit shall be made void, or by prohibiting its fulfilment, when taken.\nFor the inferior or subject, considered as such, could not bind himself\nto engagements, beyond those allowed by the sovereign legislature. In\nthe same manner, by the Hebrew Law, husbands might annul the oaths of\nwives, and fathers those of children, who were still dependent.\n\nXII. In this place we may cursorily observe, that what is said in the\nprecepts of Christ, and by St. James, against swearing at all, applies\nnot to an oath of affirmation, many instances of which are to be\nfound in the writings of St. Paul, but to promissory oaths respecting\nuncertain and future events. This is plain from the opposition in the\nwords of Christ. \"You have heard it hath been said by them of old time,\nthou shalt not forswear thyself, but shalt perform unto the Lord thine\noath. But I say to you, swear not at all.\" And the reason given for\nit by St. James, is that \"you fall not into hypocrisy,\" or be found\ndeceivers; for so the word HYPOCRISY signifies in the Greek.\n\nAgain it is said by St. Paul, that all the promises of God in Christ\nare YEA and AMEN, that is are certain and undoubted. Hence came the\nHebrew phrase, that a just man's YEA is YEA, and his NO is NO. On the\nother hand, persons, whose actions differ from their affirmations,\nare said to speak YEA and NO, that is their affirmation is a denial,\nand their denial an affirmation. In this manner St. Paul vindicates\nhimself from the charge of lightness of speech, adding that his\nconversation had not been YEA, and NO.\n\nXIII. Affirmations are not the only modes of obligation. For in many\nplaces signs have been used as pledges of faith; thus among the\nPersians giving the right hand was considered the firmest tie. So that\nwhere any form is substituted for an oath, the violation of it will be\nan act of perjury. It has been said of Kings and Princes in particular,\nthat their faith is the same as an oath. On which account Cicero, in\nhis speech for Dejotarus, commends Caesar no less for the vigour of his\narm in battle, than for the sure fulfilment of the pledge and promise\nof his right hand.\n\n\n\n\nCHAPTER XV.[39]\n\nON TREATIES AND ON ENGAGEMENTS MADE BY DELEGATES, EXCEEDING THEIR POWER.\n\n Public Conventions--Divided into treaties, engagements, and other\n compacts--Difference between treaties and the engagements made\n by delegates exceeding their powers--Treaties founded on the\n law of nature--Their origin--Treaties founded on still more\n extensive principles--Treaties with those, who are strangers to\n the true religion, prohibited neither by the Jewish nor Christian\n law--Cautions respecting such treaties--Christians bound to unite\n against the enemies of the Christian religion--Among a number\n of Allies in war, which of them have the first pretensions to\n assistance--Tacit renewal of treaties--The effect of perfidy in one\n of the contracting parties considered--How far the unauthorized\n engagements of delegates are binding, when the sovereigns refuse\n to ratify them--The Caudian Convention considered--Whether the\n knowledge and silence of the Sovereign makes those unauthorized\n conventions binding--The Convention of Luctatius considered.\n\n\nI. Ulpian has divided conventions into two kinds, public and private,\nand he has not explained a public convention upon the usual principles,\nbut has confined it to a treaty of peace, which he alleges as his\nfirst example, and he has made use of the engagements entered into\nby the generals of two contending powers, as an instance of private\nconventions. By public conventions therefore he means those, which\ncannot be made but by the authority and in the name of the sovereign\npower, thus distinguishing them not only from the private contracts\nof individuals, but ALSO from the PERSONAL contracts of sovereigns\nthemselves. And indeed private injuries and contracts, no less than\npublic treaties frequently prove the origin of wars. And as private\ncontracts have been already so amply discussed, the higher order\nof contracts, which come under the denomination of treaties, will\nnecessarily form the leading part in our farther inquiries.\n\nII. and III. Now public conventions may be divided into treaties,\nengagements, and other compacts.\n\nThe ninth book of Livy may be consulted on the distinction between\ntreaties and engagements, where the historian informs us, that treaties\nare those contracts, which are made by the express authority of the\nsovereign power, and in which the people invoke the divine vengeance\non their heads, if they violate their engagements. Among the Romans\nthe persons employed in declaring war and making peace, were in\nthe conclusion of these solemn treaties, always accompanied by the\nprincipal herald, who took the oath in the name of the whole people.\nA _sponsio_, or ENGAGEMENT, is what was made by persons, who had no\nexpress commission for that purpose from the sovereign power, and whose\nacts consequently required a further ratification from the sovereign\nhimself.[40]\n\nThe Senate of Rome, we are informed by Sallust, judged very properly in\npassing a decree, that no treaty could be made without their consent\nand that of the people. Livy relates that Hieronymus, king of Syracuse,\nhaving entered into a convention with Hannibal, sent afterwards to\nCarthage to have it converted by the state into a league. For which\nreason Seneca the elder has said, applying the expression to persons\ninvested with a special commission for that purpose, that a treaty,\nnegotiated by the general, binds the whole of the Roman people, who are\nsupposed to have made it.\n\nBut in monarchies, the power of making treaties belongs to the king\nalone, a maxim which the language of poetry, no less than the records\nof history, shews to have been held in all ages. Euripides, whose\nsentiments are always conformable to nature, and popular opinion, in\nhis Tragedy of the Suppliants, says, \"It rests with Adrastus to take\nthe oath, to whom, as sovereign, the sole right of binding the country\nby treaties belongs.\"\n\nNo subordinate magistrates have such a power of binding the people; nor\nwill the acts of a smaller portion bind the greater, an argument used\nin favour of the Romans against the Gauls. For there was a majority of\nthe people with Camillus, the dictator.\n\nBut it remains to be considered how far the acts of those, who have\nengaged for the people, without any public authority, are binding.\nPerhaps it may be said that the contracting parties have discharged\ntheir responsibility when they have done all in their power towards the\nfulfilment of their obligation. That might be the case in promises, but\nthe obligation in public contracts is of a stricter kind. For the party\ncontracting requires something in return for the engagements he makes.\nHence the civil law, which rejects all promises made by one person for\nthe performance of some act by another, renders him who engages for the\nratification of a thing liable to pay damages and interest.\n\nIV. The most accurate distinction in treaties, is that which makes the\nfoundation of some rest purely upon the law of nature, and others upon\nthe obligations, which men have either derived from the law of nature,\nor added to it. Treaties of the former kind are, in general, made, not\nonly between enemies, as a termination of war; but in ancient times\nwere frequently made, and, in some degree, thought necessary among men\nin the formation of every contract. This arose from that principle in\nthe law of nature, which established a degree of kindred among mankind.\nTherefore it was unlawful for one man to be injured by another. And\nthis natural justice universally prevailed before the deluge. But after\nthat event, in process of time, as evil dispositions and habits gained\nground, it was by degrees obliterated. So that one people's robbing and\nplundering another, even when no war had been commenced or declared,\nwas deemed lawful. Epiphanius calls this the Scythian fashion. Nothing\nis more frequent in the writings of Homer than for men to be asked, if\nthey are robbers? A question, as Thucydides informs us, by no means\nintending to convey reproach, but purely for information. In an ancient\nlaw of Solon's mention is made of companies formed for robbery: and, we\nfind from Justin, that, till the times of Tarquin, piracy was attended\nwith a degree of glory.\n\nIn the law of the Romans it was a maxim, that nations, which had not\nentered into terms of amity, or into treaties with them were not to\nbe considered as enemies. But if any thing belonging to the Romans\nfell into their hands, it became theirs; or any citizen of Rome,\ntaken by them, became a slave; and the Romans would treat any person\nbelonging to that nation, in the same manner. In this case the right\nof postliminium[41] is observed. So at a remote period, before the\ntimes of the Peloponnesian war, the Corcyraeans were not considered\nas enemies by the Athenians, though there was no treaty of peace\nsubsisting between them, as appears from the speech of the Corinthians\ngiven by Thucydides. Aristotle commends the practice of plundering\nbarbarians, and in ancient Latium an enemy signified nothing but a\nforeigner.\n\nIn the class of treaties referred to in this section may be ranked\nthose made between different states for the mutual preservation of the\nrights of hospitality and commerce, as far as they come under the law\nof nature. Arco makes use of this distinction, in his speech to the\nAchaeans, as reported by Livy, where he says he does not require an\noffensive and defensive alliance, but only such a treaty as may secure\ntheir rights from infringement by each other, or prevent them from\nharbouring the fugitive slaves of the Macedonians. Conventions of this\nkind were called by the Greeks, strictly speaking, PEACE in opposition\nto TREATIES.\n\nV. Treaties founded upon obligations added to those of the law of\nnature are either equal, or unequal. Equal treaties are those, by\nwhich equal advantages are secured on both sides. The Greeks call them\nALLIANCES, and sometimes alliances upon an equal scale. But treaties\nof the latter kind are more properly leagues than treaties, and where\none of the parties is inferior in dignity, they are called INJUNCTIONS,\nor INJUNCTIONS ANNEXED TO COVENANTS. Demosthenes in his speech on\nthe liberty of the Rhodians says, all nations ought to guard against\nforming such leagues, as approaching too near to servitude.\n\nTreaties of both kinds, whether of peace or alliance are made from\nmotives of some advantage to the parties. By equal treaties of peace,\nthe restoration of prisoners, the restoration or cession of conquered\nplaces, and other matters providing for its due maintenance, are\nsettled, a subject that will be more fully treated of hereafter, in\nstating the effects and consequences of war. Treaties of alliance upon\nequal conditions relate either to commerce, or to contributions for the\njoint prosecution of a war, or to other objects of equal importance.\nEqual treaties of commerce may vary in their terms. For instance it\nmay be settled that no duties shall be imposed upon the goods of the\nsubjects, belonging to each of the contracting powers: or that the\nduties upon their respective commodities shall be lower than the duties\nupon those of any other nation. The first of these examples may be\nfound in an ancient treaty between the Romans and Carthaginians, in\nwhich there is a clause, making an exception of what is given to the\nnotary and public crier. Or it may be settled that no higher duties\nthan those existing at the time the treaty is made shall be imposed, or\nthat they shall not be augmented beyond a certain rate.\n\nSo in alliances of war the contracting parties are required to\nfurnish equal numbers of troops or ships, a kind of alliance which,\nas Thucydides explains it, calls upon the united powers to hold the\nsame states for common enemies or friends: we find, in many parts\nof Livy, alliances of this description among states, for the mutual\ndefence of their territories or for the prosecution of some particular\nwar, or against some particular enemy, or against all states excepting\ntheir respective allies. Polybius has given a treaty of this kind,\nmade between the Carthaginians and Macedonians. In the same manner\nthe Rhodians bound themselves by treaty to assist Atigonus Demetrius\nagainst all enemies except Ptolemy. There are other objects too for\nwhich equal treaties are made. Thus one power may bind another to build\nno forts in their neighbourhood which might prove an annoyance, to give\nno encouragement to rebellious subjects, to allow the troops of an\nenemy no passage through their country.\n\nVI. From equal treaties, the nature of unequal treaties may easily\nbe understood. And where two powers contract, this inequality may\nbe on the side either of the superior, or of the inferior power.\nA superior power may be said to make an unequal treaty, when it\npromises assistance without stipulating for any return, or gives\ngreater advantages than it engages to receive. And on the part of the\ninferior power this inequality subsists when, as Isocrates says in his\nPANEGYRIC, her privileges are unduly depressed; so that engagements of\nthis kind may be called injunctions or commands rather than treaties.\nAnd these may, or may not, be attended with a diminution of their\nsovereign power.\n\nSuch a diminution of sovereign power followed the second treaty between\nthe Carthaginians and Romans, by which the former were bound to make\nno war but with the consent of the Roman people; so that from that\ntime, Appian says, the Carthaginians were compelled by treaty to comply\nwith the humour of the Romans. To this kind may be added a conditional\nsurrender, except that it leads not to a DIMINUTION, but to an ENTIRE\nTRANSFER of the sovereign dignity and power.\n\nVII. The burdens attached to unequal treaties, where no diminution of\nsovereignty takes place, may be either transitory or permanent.\n\nTRANSITORY burdens are those, by which the payment of certain sums of\nmoney is imposed, the demolition of certain works and fortifications,\nthe cession of certain countries and the delivery of ships or hostages\nare required. But PERMANENT conditions are those, which require the\ntribute of homage and submission from one power to another.\n\nNearly approaching to such treaties are those, by which one power is\ndebarred from having any friends or enemies, but at the pleasure of\nanother, or from allowing a passage and supplies to the troops of any\nstate, with whom that power may be at war. Besides these there may be\nconditions of an inferior and less important kind; such as those, which\nprohibit the building of forts in certain places; maintaining armies,\nor having ships beyond a certain number; navigating certain seas, or\nraising troops in certain countries; attacking allies or supplying\nenemies. Some conditions indeed go so far as to prohibit a state from\nadmitting refugees, and to demand annulling all former engagements with\nevery other power. Numerous examples of such treaties are to be found\nin historians both ancient and modern.\n\nUnequal treaties may be made not only between the conquerors and the\nconquered but also between mighty and impotent states, between whom no\nhostilities have ever existed.\n\nVIII. In considering treaties, it is frequently asked, whether it be\nlawful to make them with nations, who are strangers to the Christian\nreligion; a question, which, according to the law of nature, admits not\nof a doubt. For the rights, which it establishes, are common to all men\nwithout distinction of religion.\n\nThe gospel has made no change in this respect, but rather favours\ntreaties, by which assistance in a just cause may be afforded even to\nthose, who are strangers to religion. For to embrace opportunities of\ndoing good to all men is not only permitted as laudable, but enjoined\nas a precept. For in imitation of God, who makes his sun to rise upon\nthe righteous and the wicked, and refreshes them both with his gracious\nrain, we are commanded to exclude no race of men from their due share\nof our services. Yet, in equal cases, it admits of no doubt, that those\nwithin the pale of our own religious communion have a preferable claim\nto our support.\n\nIX. In addition to the foregoing arguments we may observe that as all\nChristians are considered as members of one body, which are required to\nfeel for the pains and sufferings of each other, this precept applies\nnot only to individuals, but to nations and kings in their public\ncapacity. For the rule of duty is not to be measured by the inclination\nof individuals, but by the injunctions of Christ. And in some cases\nthe ravages of an impious enemy can only be opposed by a firm alliance\namong Christian kings, and governments. And it is a duty from which\nnothing, but inevitable necessity, and their immediate attention being\nengrossed by the prosecution of other wars, can excuse them.\n\nX. Another question frequently arises, which is, when two states are\nengaged in war with each other, to which of them a power, equally\nallied to both, ought in preference to give assistance. Here too we\nmust observe there can be no obligation to support unjust wars. On\nwhich account that confederate power, which has justice on its side,\nwill have a claim to preference, if engaged in war with another not\ncomprehended in the number of confederates, or even if engaged with one\nof the confederates themselves.\n\nBut if two powers engage in a war, equally unjust on both sides, a\nthird power, united in confederacy with both, will prudently abstain\nfrom interference. Again, if two powers allied to us are engaged in\na just war against others, with whom we have no connection; in the\nsupplies of men or money that we furnish to either we ought to follow\nthe rule, observed in the case of personal creditors.[42]\n\nBut if personal assistance, which cannot be divided, is required of the\ncontracting party, in that case the preference must be given to the\nengagements of the longest standing. However the case of a subsequent\ntreaty, which makes the engagements of a more binding and extensive\nnature, will form an exception to this rule.\n\nXI. The tacit renewal of a treaty ought not to be presumed upon at the\nexpiration of the period, limited for its continuance, unless certain\nacts be performed, which can expressly be construed as a renewal of it,\nand can be taken in no other sense.\n\nXII. If one of the parties violates a treaty, such a violation releases\nthe other from its engagements. For every clause has the binding force\nof a condition. And as an example of this, a passage from Thucydides\nmay be quoted, where that historian says that \"for one power to accede\nto a new confederacy, and to desert an ally who has neglected to\nfulfil his engagements, is no breach of a treaty; but not to assist\nanother power in conformity to sworn engagements amounts to a violation\nthereof.\" And this is generally true, except where it has been agreed\nto the contrary, that a treaty shall not be null and relinquished for\ntrifling disgusts and miscarriages.\n\nXIII. Conventions are as various and numerous as treaties, and the\ndistinction made between them is owing more to the difference of power\nin those by whom they are made, than to any real difference in their\nown nature. But there are two particular points of inquiry materially\nconnected with all conventions, the first of which relates to the\nextent of the negotiator's obligation, when the sovereign or the\nstate refuses to ratify a convention, whether he is bound to make an\nindemnity to the other party for the disappointment, to restore things\nto the situation they were in before he treated, or to deliver up his\nown person. The first opinion seems conformable to the Roman civil law,\nthe second to equity as it was urged by the tribunes of the people, L.\nLivius, and J. Melius, in the dispute about the peace of Caudium;[43]\nbut the third is that most generally adopted, as was done respecting\nthe two famous conventions of Caudium and Numantia. But there is one\ncaution particularly to be observed, and that is, that the sovereign is\nno way bound by such unauthorised conventions, until he has ratified\nthem. In the convention alluded to, if the Samnites had intended to\nbind the Roman people, they should have retained the army at Caudium,\nand sent ambassadors to the senate and people at Rome, to discuss the\ntreaty, and learn upon what terms they chose to redeem their army.\n\nXIV. Another question is, whether the knowledge and silence of the\nsovereign bind him to the observance of a convention. But here it is\nnecessary to make a distinction between an absolute convention, and\none made upon condition of its being ratified by the sovereign. For as\nall conditions ought to be literally fulfilled, such a condition, on\nfailure of fulfilment, becomes void.\n\nThis principle was very properly observed in the convention made\nbetween Luctatius and the Carthaginians; to which the people refused\nto accede, as it had been made without their consent.[44] A new treaty\ntherefore was made by public authority.\n\nThe next thing to be considered is, whether there may not be some act\nof consent besides silence. For without some visible act, silence is\nnot of itself sufficient to warrant a probable conjecture of intention.\nBut if certain acts are done which can be accounted for upon no other\ngrounds than those of consent, they are supposed to ratify a treaty.\nThus if the convention of Luctatius had contained many clauses, some of\nthem relinquishing certain rights, and those clauses had been always\nduly observed by the Romans, such observance would be justly taken for\na ratification of the treaty.\n\n\n\n\nCHAPTER XVI.\n\nTHE INTERPRETATION OF TREATIES.\n\n The external obligation of promises--Words where other conjectures\n are wanting to be taken in their popular meaning--Terms of art\n to be interpreted according to the acceptation of the learned in\n each art, trade, and science--Conjectures requisite to explain\n ambiguous or seemingly contradictory terms--Interpretation\n of treaties from the subject-matter--From consequences, from\n circumstances and connection--Conjectures taken from motives--The\n more strict or more extensive interpretation--Treaties favourable,\n odious, mixed or indifferent--The good faith of kings and nations\n in treaties of equal validity with law--Rules of interpretation\n formed from the above named distinctions--Whether the word\n allies, in a treaty, is limited to those, who were such at the\n time of making it, or applies to all who are, or hereafter may\n become such--Interpretation of the prohibition of one party's\n making war without the consent or injunction of the other--Of the\n freedom granted to Carthage--Distinction between personal and\n real treaties--A treaty made with a king continues even during\n his expulsion by an usurper, such a treaty extends not to an\n invader--What kind of promises ought to have the preference--The\n extent of obvious conjectures--The performance of a commission\n by doing something equivalent--Interpretation restricted more\n closely than the bare signification of the words implies--From\n an original defect of intention--From failure of the sole\n motive--From a defect in the subject--Observations on the last\n named conjectures--Emergencies repugnant to the original intention,\n by rendering it unlawful or burdensome--Conjectures taken from\n a comparison of one part of the writings with another--Rules to\n be observed--In dubious cases, writings not absolutely requisite\n to the validity of a contract--Contracts of Sovereigns not\n to be interpreted by the Roman law--Whether the words of the\n person accepting or offering the engagement ought to be most\n regarded--This explained by a distinction.\n\n\nI. If we consider the promiser alone, he is naturally bound to fulfil\nhis engagements. Good faith, observes Cicero, requires that a man\nshould consider as well what he intends, as what he says. But as acts\nof the mind are not, of themselves visible, it is necessary to fix upon\nsome determinate mark, to prevent men from breaking their engagements,\nby allowing them to affix their own interpretation to their words.\nIt is a right, which natural reason dictates, that every one who\nreceives a promise, should have power to compel the promiser to do\nwhat a fair interpretation of his words suggests. For otherwise it\nwould be impossible for moral obligations to be brought to any certain\nconclusion. Perhaps it was in this sense that Isocrates, treating of\nagreements, in his prescription against Callimachus, maintains that\nthe laws enacted on this subject are the common laws of all mankind,\nnot only Greeks, but barbarians also. It is for this very reason, that\nspecific forms have been assigned for treaties, which are to be drawn\nup in terms of unequivocal and certain meaning. The proper rule of\ninterpretation is to gather the intention of the parties pledged, from\nthe most probable signs. And these are of two kinds, namely, words and\nconjectures, which may be considered either separately, or together.\n\nII. Where we have no other conjecture to guide us, words are not to be\nstrictly taken in their original or grammatical sense, but in their\ncommon acceptation, for it is the arbitrary will of custom, which\ndirects the laws and rules of speech.[45] It was a foolish act of\nperfidy therefore in the Locrians, when they promised they would adhere\nto their engagements as long as they stood upon that soil, and bore\nthose heads upon their shoulders, in order to evade their promise to\ncast away the mould, which they had previously put within their shoes,\nand the heads of garlick, which they had laid upon their shoulders.\nActs of treachery like these, Cicero, in the third book of his Offices,\nhas properly observed, instead of mitigating, tend to aggravate the\nguilt of perjury.\n\nIII. In terms of art which are above the comprehension of the general\nbulk of mankind, recourse, for explanation, must be had to those, who\nare most experienced in that art; thus from consulting legal writers,\nwe may conceive the nature of particular crimes, or from the pages of\nthe same authors, derive our notions of sovereign power.\n\nIt is a just remark of Cicero's, that the language of logic is not\nthat of daily and familiar intercourse: the writers of that class have\nphrases peculiar to themselves: which indeed is the case with arts\nof every description. So in treaties, where military arrangements\noccur, an army is defined to be a number of soldiers capable of OPENLY\ninvading a foreign, or an enemy's country. For historians everywhere\nmake a distinction between the private incursions of robbers, and\nwhat is done by a lawful and regular army. What constitutes an army\nmust be therefore judged of by the enemy's force. Cicero defines an\narmy to consist of six legions and auxiliaries. Polybius says, that a\nRoman army in general amounted to sixteen thousand Romans, and twenty\nthousand auxiliaries. But a military force might be composed of a less\nnumber of troops than this. In the same manner the number of ships\nsufficient for any purpose will amount to a fleet, and a place able to\nhold out against an enemy may be called a fort.\n\nIV. It is necessary to make use of conjecture, where words or sentences\nadmit of many meanings: A mode of expression when included in one word,\nis called by Logicians, a synonymous term, and, when extending to two\nor more words, a doubtful phrase. In the same manner it is necessary\nto have recourse to conjecture whenever a seeming contradiction occurs\nin the expressions of a treaty. For in that case we must try to\ndiscover such conjectures, as will reconcile, if possible, one part\nwith another. For if there be an evident contradiction, the contracting\nparties by their latter determinations, must have intended to abrogate\ntheir former; as no one can design to make contradictory resolutions\nat the same time. Indeed all acts depending upon the human will, as\nin the case of laws and testaments, which depend upon the will of one\nparty, and in contracts and treaties, which depend upon that of two or\nmore, all these acts are liable to changes, with a subsequent change\nof will in the parties concerned. In all such cases any obscurity in\nthe language obliges us to have recourse to conjectures, which are\nsometimes so obvious, as to point out a meaning directly contrary to\nthat of the words in their usual acceptation. Now the principal sources\nof conjecture are to be found in the subject-matter, the consequences,\nand the circumstances and connection.\n\nV. From the subject or matter, as for instance, in the word day. Thus\nif a truce be made for thirty days, here civil and not natural days are\nmeant.[46]\n\nSo the word donation is sometimes used to signify a transfer, according\nto the nature of the business. In the same manner too the word\narms, which in general signifies military instruments, is sometimes\napplied to troops, and may be taken in either sense, according to the\nparticular occasion. Every interpretation must be given according to\nthe intention understood. Thus the promise of a free passage given\nupon the evacuation of a town, implies also that the troops shall pass\nwithout molestation. If a number of ships are to be given up, perfect\nand not mutilated ships are meant. And in all similar cases a similar\njudgment must be formed according to the natural tenor of the words.\n\nVI. Another source of interpretation is derived from the consequences,\nespecially where a clause taken in its literal meaning would lead to\nconsequences foreign or even repugnant to the intention of a treaty.\nFor in an ambiguous meaning such an acceptation must be taken as will\navoid leading to an absurdity or contradiction. The cavil of Brasidas\ntherefore is highly abominable, who, promising that he would evacuate\nthe Boeotian territory, said he did not consider that as Boeotian\nterritory, which he occupied with his army; as if the ancient bounds\nwere not intended, but only what remained unconquered, an evasion,\nwhich entirely annulled the treaty.\n\nVII. From the circumstances or context another source of interpretation\nis derived. No inconsiderable light may be thrown upon the meaning\nof an expression from the circumstance of its being used by the same\nperson to express the same intentions on other similar occasions, and\nfrom its relation to what goes before, and what follows the place,\nwhere it stands. For in all doubtful cases, we have reason to suppose\nthat the contracting parties mean to be consistent with their former\nopinions and intentions. Thus in Homer, in the agreement between Paris\nand Menelaus, that Helen should be given up to the conqueror, when\ncompared with what follows, it is evident that by the conqueror is\nmeant the combatant, who killed the other. This rule of interpretation,\nPlutarch illustrates by the conduct of judges, \"who passing by what is\nobscure rest their decisions upon clear and unambiguous points.\"\n\nVIII. As to the motives, which are sometimes taken for a rule of\ninterpretation, there may be other substantial ones, besides those\nimmediately expressed, for the passing of a law or the making of a\ntreaty. Yet the strongest conjecture is that which arises from certain\nproof that the will was actuated by some reason, operating as a sole\nand sufficient motive. For there are frequently MANY motives, and\nsometimes the will is influenced by its own choice independent of any\nother reason. In the same manner a grant made, in contemplation of a\nmarriage, will be void, if the marriage never takes place.\n\nIX. It is further to be observed that many words have a variety of\nacceptations, some more limited and others more extensive; which may\nbe owing either to the application of a general name to a particular\nclass of things, as in the words kindred and adoption; or to the use\nof masculines to express animals both of the male and female kind,\nwhere nouns of a common gender are wanting. In terms of art too, words\nare often taken in a metaphorical or extended sense: thus in the civil\nlaw death signifies banishment; but in its popular acceptation a\ndissolution of the parts of the natural body.\n\nX. In promises likewise, some things are of a favourable, some an\nodious, and others of a mixed or indifferent description. Favourable\npromises are those which contain an equality of terms, or which bear\nsome relation to the common good, the magnitude and extent of which\nincreases the favour of the promise: so that all engagements more\nconducive to peace than to war are to be considered as those of a\nfavourable complexion, and alliances for mutual defence are always\nregarded as a more laudable object than those for offensive war.\n\nTreaties of an odious kind are those which lay greater burdens on one\nparty than on the other, which contain penalties for non-performance,\nor which lead to an abrogation or infraction of former treaties.\nWhereas, though engagements of a mixed nature may create a deviation\nfrom former treaties, they may be taken either in a favourable or\nodious light, according to the magnitude, or object of the change\nproduced. If it be for the sake of peace, it is better, taking all\ncircumstances into consideration, to rank them with those of a\nfavourable kind.\n\nXI. The distinction made by the Roman law between acts of equity\nand those of strict justice, cannot GENERALLY be applied to the law\nof nations, though it may in some cases be adopted. Thus in any\ntransaction between the subjects of two countries, in each of which the\nsame form of legal proceeding is observed, the parties are supposed to\ntreat without any intention of deviating from the common rule and form,\nunless they have expressly determined to the contrary. But in acts for\nwhich no common rule is prescribed, as in donations and free promises,\nthere the parties are supposed to treat according to the strict letter\nof the agreement.\n\nXII. After the establishment of the former positions, the subject\nnaturally proceeds to the rules themselves, which are to be observed\nin the interpretation of treaties. And in the first place we may\nremark, that in things, which are not of an odious nature, words are\nto be taken strictly in their popular meaning, and where they admit of\nexceptions, or have more significations than one, it is lawful to use\nthat which is most extensive. As it has been already observed, that\nboth Logicians and Grammarians frequently use particular terms in a\ngeneral sense. Thus Cicero in pleading for Caecina, justly maintains\nthat the interlocutory decree, ordering THAT THE PERSON EJECTED FROM\nHIS INHERITANCE SHOULD BE REINSTATED IN THE POSSESSION, implies not\nonly an ejectment, but extends to any forcible prevention of the\nowner's taking possession.\n\nIn things of a favourable nature, if the parties engaged are acquainted\nwith the legal principles, upon which they proceed, or rest upon the\njudgment of those who are so, the words used may be taken in their most\nextensive signification, including even terms of art and of law.[47]\nAgain, we must never have recourse to a metaphorical interpretation,\nexcept where the literal meaning would lead to a direct absurdity, or\nwould defeat the intention of a treaty.\n\nOn the other hand a passage may be interpreted in a more limited\nsignification, than the words themselves bear, if such interpretation\nbe necessary, to avoid injustice or absurdity. If no such necessity\nexist, but equity or utility manifestly require a restriction to the\nliteral meaning, it must be most rigidly adhered to, except where\ncircumstances compel us to do otherwise. But in things of an odious\nnature a figurative expression may be allowed in order to avoid\ninconvenience or injustice. Therefore, when any one makes a grant, or\nrelinquishes his right, though he express himself in the MOST GENERAL\nterms, his words are usually RESTRICTED to that meaning, which it is\nprobable he intended. And in cases of this kind, the hope of retaining\na thing is sometimes taken for the act of possession. In the same\nmanner it is understood that subsidies of men, promised by one party\nonly, are to be maintained at the expence of the power, who requires\nthem.\n\nXIII. It is a famous question whether the word ALLIES includes only\nthose who were such at the time of making the treaty, or those who\nmight afterwards become so: as was the case in the treaty made between\nthe Roman people and the Carthaginians at the conclusion of the war\nthat had originated in a dispute about Sicily, by which treaty it was\nstipulated that both powers should forbear attacking the allies of\neach other. Hence the Romans inferred that although the convention\nmade with Asdrubal, by which he was prohibited from passing the\nIberus, had been of no service to them, as it had not been ratified by\nthe Carthaginians, yet if the Carthaginians sanctioned the conduct\nof Hannibal in his attack upon the people of Saguntum with whom the\nRomans, after the making of that convention, had entered into an\nalliance, they should consider themselves as authorised to declare war\nagainst the Carthaginians for having violated a solemn treaty. Upon\nwhich Livy reasons in the following manner, \"By the clause in favour of\nallies on both sides, there was sufficient security for the Saguntines.\nFor there was no limitation of the words to those, who were allies at\nthat time, nor were they such as to exclude either power from making\nnew alliances. But if both sides were at liberty to make new alliances,\nwho could think it just to deprive the new allies of that protection\nto which they would be entitled from treaties of amity? The exclusion\ncould reasonably go no further than to declare that the allies of the\nCarthaginians should not be seduced to renounce their engagements, nor\nif they did so, be admitted into alliance with the Romans.\"\n\nThe last passage is taken, almost word for word, from the third book\nof Polybius. On which we may observe that the word ALLIES may strictly\nmean those, who were so at the time, when the treaty was made, and,\nwithout any forced interpretation, may also be extended to embrace\nthose, who afterwards became such. To which of these interpretations\nthe preference is to be given may be seen from the rules above given:\nand according to those rules, it will be found, that alliances formed\nafter the making of the treaty will not be comprehended in it, because\nit relates to the breach of a treaty, the violation of which is an\nodious act, and tends to deprive the Carthaginians of the liberty of\nredressing themselves by force against those who were supposed to have\ninjured them; a liberty sanctioned by the law of nature, and not to\nbe abandoned on any slight occasion. Were the Romans debarred then by\nthis rule from making any treaty with the Saguntines, and defending\nthem after they became allies? No! they had a right to defend them,\nnot by virtue of any treaty, but upon principles of natural justice,\nwhich no treaty can annul. The Saguntines therefore with respect to\nboth powers were in the same situation, as if no engagement had been\nmade in favour of allies. In this case, it was no breach of treaty for\nthe Carthaginians, upon just grounds, to commence hostilities against\nthe Saguntines, nor for the Romans to defend them. Upon the same\nprinciple, in the time of Pyrrhus, it had been stipulated, by treaty,\nbetween the Carthaginians and Romans, that if either of them afterwards\nentered into any engagement with Pyrrhus, the party so contracting\nshould reserve to itself the right of sending succours to the other, if\nattacked by that king. Though in that case the war ON BOTH SIDES could\nnot be just, yet it would involve no infraction of any treaty. This is\nan example of a case in equal treaties.\n\nXIV. The case of an unequal treaty may be put, where it is agreed\nthat one of the confederate parties shall not make war, without the\nconsent, or by the injunction of the other, which was stipulated in\nthe treaty between the Romans and Carthaginians, after the conclusion\nof the second Punic war. When the term WAR is applied to war of every\ndescription, particularly to offensive rather than defensive war; in a\ndubious case, it must be limited to its proper signification, lest the\ntreaty should operate as too great a restraint upon the liberty of that\npower, which has engaged in the unequal treaty.\n\nXV. Of the same kind is the promise given by the Romans, that Carthage\nshould be free, which could never mean the enjoyment of complete\nindependence, by a people, who had long before lost the right of making\nwar, and many of their other privileges. Yet it left them some degree\nof liberty, so much at least, that they should not be obliged to remove\nthe seat of their government at the command of any foreign power, and\ngave them a pledge that their city should not be disturbed. It was\nin vain then for the Romans to urge that it was only the city which\nwas intended. Whereas those acquainted with the use of metaphorical\nlanguage know that by the city is frequently meant the inhabitants, and\ngovernment with its privileges, and not the mere walls and houses. For\nthe term, BEING LEFT FREE, implies that the people should enjoy their\nown laws.\n\nXVI. The nature of personal and real treaties is a frequent subject of\ninquiry, which may properly be examined in this place. Indeed in all\ntransactions with a free people, the engagements entered into with them\nare of a real nature; because the subject of them is a permanent thing.\nSo permanent, that, although a republican be changed into a regal\ngovernment, a treaty will remain in force: for the political body\ncontinues the same, although the head be changed, and the sovereign\npower, which before was diffused among many members, is now centered in\none. Yet this rule will admit of an exception, where it is evident that\nthe specific form of government made an essential part of the treaty,\nas when two states make a federal union for the mutual preservation\nof their political systems. But if a treaty be made with a KING OR\nSOVEREIGN PRINCE, it does not consequently follow that it is to be\nconsidered only as a PERSONAL and not a REAL treaty. For the name of a\nperson may be inserted in a treaty, not merely to give it the character\nof a personal treaty, but to point out the contracting parties. And\nthis will be still more evident, if, as is usual in most treaties, a\nclause is annexed declaring it to be perpetual, or made for the good of\nthe kingdom, or with the king himself, and his successors, and it will\nalso be considered as a real treaty, even if it is stated to be passed\nfor a definite time. The treaty between the Romans and Philip, King of\nthe Macedonians, seems to have been of this description, which, upon\nthe refusal of his son to continue it, gave rise to a war.\n\nOther forms too besides those already named, and the subject itself,\nwill frequently supply no improbable grounds of conjecture. But if the\nconjectures are equal on both sides, it will remain that favourable\ntreaties are supposed to be real or permanent, and odious ones only\npersonal. All treaties of peace or commerce are favourable. Yet all\ntreaties of war are not odious, especially those of the defensive\nkind, such a character belonging only to offensive wars, from the\ncontemplation of the calamities which they inflict. It is presumed too,\nthat in the formation of treaties, the character of each party is taken\ninto the account, and that both are persuaded that neither of them will\ncommence hostilities, but from just and important causes.\n\nWhat is usually said of societies terminating with the death of the\nparties, has no connection with this subject, but relates to private\nsocieties, the cognizance of which belongs to the civil law. Whether\nit was right or wrong therefore in the people of Fidenae, the Latins,\nTuscans and Sabines, upon the death of Romulus, Tullus, Ancus, Priscus,\nServius, to abandon the respective treaties made with those kings, it\nis impossible for us now to decide, those treaties being no longer\nextant. On the same point, Justin maintains a discussion, whether\nthose states, which had been tributary to the Medes, were upon a\nchange of government, released from their obligations. For the thing\nto be considered is, whether the convention with the Medes had been\na voluntary act of their own. Indeed the argument of Bodinus can by\nno means be admitted, which is, that treaties made with kings extend\nnot to their successors; For the obligation of an oath is limited\nto the person of him, who takes it. It is true that the oath itself\ncan bind only the person who takes it; yet the engagements, which it\nconfirms, will be binding upon his heirs. Nor is it to be taken for\nan established maxim, that oaths are the only foundation, on which\ntreaties rest. The engagement itself is sufficiently binding, the oaths\nbeing only added to give it the greater sanctity. In the Consulship\nof Publius Valerius, the Roman people had taken an oath to muster at\nthe command of the Consul. Upon his death, he was succeeded by Lucius\nQuintius Cincinnatus. Some of the tribunes began to quibble, pretending\nthat the people were released from their obligation. Upon which Livy,\nin his third book, remarks, that \"at that time they had not degenerated\ninto the disregard of religious obligations, which marked his age: nor\ndid every one allow himself a latitude in explaining oaths, and laws,\nbut thought that he was bound to conform to their literal meaning.\"\n\nXVII. A treaty made with a king continues in force, even though\nthe same king or his successor should be banished from the kingdom\nby rebellious subjects. For the rights of a king, among which his\nalliances may be reckoned, remain unimpaired, during the temporary loss\nof his throne. A case to which the expression of Lucan may be applied,\nthat \"order never loses its rights under any change of circumstances.\"\n\nXVIII. On the other hand, any war, if it be with the consent of the\nlawful sovereign, made upon the invader of his kingdom, or upon the\nusurper of a free people's rights before his usurpation has received\npublic sanction, will be deemed no infraction of any former treaty\nwith the established authorities of that kingdom or country. For acts\nof usurpation convey not immediately any right beyond that of bare\npossession. And this is what was said by Titus Quintius to Nabis, \"We\nmade no treaty of alliance and amity with you, but with the just and\nlawful king of the Lacedaemonians.\" For in treaties the characters of\nKING, SUCCESSOR, and the LIKE, carry with them an idea of a peculiar\nand lawful right, which must always render the cause of USURPERS odious.\n\nXIX. It was a question formerly discussed by Chrysippus, whether a\nprize promised to him, who first reached the goal, could be given to\ntwo, who reached it at the same time, or to neither. But as rewards of\nmerit are things of a favourable nature, it is the juster opinion that\nthey should divide the prize. Although Scipio, Caesar and Julian acted\nmore liberally, in giving the entire prizes to each of those who had\nascended the walls together.\n\nWhat has been already said upon the literal or figurative application\nof the words, in interpreting treaties, will be sufficient.\n\nXX. There is also another kind of interpretation, arising from\nconjectures, which apply exactly to the signification of the words\ncontaining a promise or engagement; and that is of a twofold\ndescription, either extending or limiting the meaning. But it is more\ndifficult to extend than to limit the acceptation of expressions. For\nas in all matters the want of one essential requisite is sufficient\nto defeat their effect; so in engagements, those conjectures, which\nextend the obligation are not readily to be admitted. And it is much\nmore difficult here than in the case above mentioned; where words\nallow a more extensive but less familiar acceptation. For here it is\nseeking a conjecture to extend the words of a promise: the conjecture\ntherefore, which is to create an obligation, ought to be very certain.\nNor is it sufficient that there is some resemblance in the motives;\nfor the motive produced to confirm an obligation must be exactly the\nsame as that of the case under consideration. Neither is it always\nproper to allege a motive for extending an obligation; because, as it\nhas been already said, motives, in actuating us to form engagements,\nmay sometimes be swayed by the will which often acts independently of\nany just motive. To authorise therefore such an extension, it must be\nevident that the motive, produced as an example and authority, was\nthe sole and effectual cause, which influenced the promiser, and that\nhe considered it in the same extensive view; for otherwise it would\nhave been unjust and prejudicial. The ancients in their treatises\non rhetoric follow the same rule, when, in speaking of the LETTER\nand DESIGN, they give us one invariable form of expressing the same\nsentiment, but in their syllogisms or arts of reasoning they point out\na way of interpreting what is not written, by what is written. In the\nsame manner too legal writers lay down rules for avoiding frauds. Now\nif at a time, when there was no other mode of fortifying towns, than by\nsurrounding them with walls, it were stipulated that a certain place\nshould not be so surrounded, it is evident that to employ any other\nmeans of fortification would be a breach of that treaty.\n\nAs in the above case the interpretation must be extended to guard\nagainst every possible evasion, so in the following example, the\nprohibition to assemble an armed force to assail us includes all\nkinds of violence and force, by which our lives and security may be\nendangered.[48]\n\nXXI. Hence may be solved the question to be found in Gellius,\nrespecting a commission, whether it can be fulfilled by doing, not the\nimmediate act required, but some thing equivalent to it, or in a manner\nmore beneficial than in the form prescribed. For this deviation from\nthe written rule may be proper and lawful, where the prescribed form is\nnot essential towards attaining the object, or where, by departing from\nit, that object can be better accomplished, according to the answer\ngiven by Scaevola, that the person required to be bail and security for\nanother, may give an order to a third person to pay that money to the\ncreditor. But where such a latitude of interpretation is not evidently\nadmissible, we must adhere to what Gellius has said in the same place,\nthat it would be a dissolution of all trusts, if the party acting in\ncommission were, in all cases, left to his own discretion, rather than\nbound by his written instructions.\n\nXXII. An interpretation, restricted more closely than the literal\nsignification of the words containing a promise absolutely requires,\nmay arise either from some original defect in the intention of\nthe promiser, or from some subsequent emergency repugnant to such\nintention. Thus if it were evident that an absurdity would follow the\nfulfilment of a promise, this would be sufficient to prove an original\ndefect in the intention, because no man can be supposed to have\ndeliberately intended doing an absurd act. Or if the sole and effectual\nreason, by which the promise was influenced, should have ceased, the\nobligation also would be void, the sole ground on which it rested being\nno longer in existence.\n\nXXIII. In the next place, where any sufficient reason can evidently be\nassigned for a promise or engagement, it is not the substance of the\npromise itself, which is to be considered, so much as the reason for\nwhich that promise was given.\n\nXXIV. Thirdly, the contending parties must always be supposed to have\nin contemplation the subject, and nothing but the subject, however\nextensive a signification the words may seem to bear. This method of\ninterpretation also is handled by the ancient rhetorical writers, in\nspeaking of expression and design, and they place it under the head of\nVARIATIONS IN OPINION.\n\nXXV. In speaking of motives and reasons, it is proper to observe, that\nthey some times comprehend things, considered not according to their\nactual existence, but according to their moral consequences: in which\ncase it is by no means right to limit the words of a treaty to their\nliteral meaning, but the utmost extent of interpretation is allowable,\nin order to maintain the spirit as well as the letter of such treaties.\nThus if it be stipulated that no troops or ships shall be brought to a\ncertain place, or within a certain distance, the prohibition excludes\nALL ships or troops from being brought thither, even under the fairest\nand most harmless pretences. For the purport of the treaty is to guard\nnot only against actual mischief but even against remote danger.\n\nIt is a point often disputed, whether the continuance of things in\ntheir present state is a tacit condition, on which the fulfilment of\nall promises is founded. A position that can by no means be maintained,\nunless it appears that such continuance was the sole motive upon\nwhich the treaties were made. As in many parts of history, we read of\nambassadors having relinquished their missions, and returned home,\nupon finding the state of things so changed that the object of their\nembassies was at an end.\n\nXXVI. When an emergency arises repugnant to the general intention of an\nact, it is explained by the ancient masters of rhetoric under the head\nof expression and design. Now this variation between the emergency and\nthe intention is of a twofold nature. For the will and its intention\nare to be collected either from natural reason or from some outward\nsign. In judging of the will by natural reason, Aristotle, who has\ntreated the subject with great accuracy, makes the MIND the SEAT OF\nJUDGMENT, and the WILL the SEAT OF EQUITY, which he nobly defines to\nbe the correction of that, wherein the law, by reason of its universal\nnature is defective.[49]\n\nAnd upon this principle all wills and treaties ought to be interpreted.\nFor as all cases could neither be foreseen nor expressed by the\nlawgiver, it is necessary to leave a power of excepting the cases,\nwhich he himself would have excepted if he were present. Yet this is\nnot to be done upon light grounds; for that would be exercising a\ncontroul over the acts of another; but is only to be established upon\nthe clearest evidence and strongest proofs. The clearest proof we\ncan have of a want of equity, is where following the literal meaning\nof the words would be unlawful, that is, repugnant to natural or\ndivine precepts. For such things, as are incapable of obligation, are\nnecessarily to be excepted. Quintilian the elder, says, \"some things\nalthough comprehended within the meaning of no law form a natural\nexception.\" Thus any one, who has promised to return a sword, that\nhas been given up to him, ought not to return it into the hands of a\nmadman, as danger might result from it to himself or to other innocent\npersons. Likewise a thing, which has been deposited with any one, ought\nnot to be returned to the hands of the person, who gave the pledge, if\nthe real owner demands it. I prove this says Triphonius to be justice,\nwhich assigns to every one his own without disturbing the still juster\nclaims of another. For the reason, it has been already observed, is\nfounded on the institution of property, which makes it unjust not to\nreturn a thing when the real owner is known.\n\nXXVII. The need of equity too will appear in cases, where following the\nliteral meaning of the words will not be absolutely unlawful, yet, upon\na fair estimation, will be found too hard and intolerable. It might\nimpose a hardship inconsistent with the general condition of human\nnature, or, upon comparing the person and matter under consideration\nwith each other, it might be found at variance with the general intent\nof all law, which is to prevent evil and to redress injury. Thus, if\na person has lent a sum of money, or any other thing, for a CERTAIN\ntime, he may justly require the repayment or restoration of it WITHIN\nthat time, if he has great need of it himself: for acts of kindness are\nof such a nature, that no one can be supposed intentionally to bind\nhimself thereby to manifest inconvenience or prejudice. In the same\nmanner a sovereign, who has promised assistance to an ally, will, IN\nEQUITY, be excused from fulfilling his engagement, if he wants all his\nstrength at home to ward off danger or hostilities. The grant also of\nimmunities or privileges in ORDINARY cases, cannot be pleaded as an\nexemption or exception from the services, which the state in PARTICULAR\nemergencies requires.\n\nFrom the above instances it appears that Cicero has too loosely worded\nhis proposition, \"that such promises, as are prejudicial to the\nperson, to whom they are given, are not to be kept, nor, if they are\nmore prejudicial to the party giving, than beneficial to the person\nreceiving them.\" For it should not be left to the promiser to judge,\nwhether the fulfilment of his engagement will be serviceable to the\nparty receiving it, except in the case of the madman cited above:\nnor is any TRIVIAL or IMAGINARY prejudice that might result from it,\nsufficient to release the obligation. But it ought to be such, as,\naccording to the nature of the act, would necessarily be supposed to\nform an exception. Thus any one, having promised his assistance to a\nneighbour at a certain period, would not be bound to his engagement,\nif he were detained at home by the sickness of a father or a child.\nA case, which Cicero, in his first book of offices, has put in the\nfollowing terms, \"If any one has undertaken to manage a cause, and,\nin the mean time, his son is taken ill, it will be no breach of duty\nin him not to perform what he has promised.\" There is a passage in\nthe fourth book of Seneca, ON BENEFITS, to the same effect. \"I am\nliable, _says he_, to be charged with levity, and a breach of faith,\nif, things continuing as they were, when I made a promise, I do not\nperform my engagement. But if any change has taken place, it leaves\nme at liberty to reconsider the matter, and releases the obligation.\nI promised my support in court, and it afterwards appeared that the\ncause would be prejudicial to my own father. I promised to take a\njourney, but afterwards heard that the road was infested with robbers.\nI promised my presence on some particular occasion, but was prevented\nfrom attending by the sickness of a son. In all these cases, to bind me\nto my engagement, the circumstances ought to remain exactly the same as\nthey were when I made the promise.\"\n\nXXVIII. It has been said that there are other indications of intention,\nwhich require an equitable exception in favour of the present case. And\namong such proofs there can be nothing stronger than the same words\nused in another place, not where they directly oppose the present\nmeaning, for that would amount to a contradiction, but where they\nclash with it, owing to some unexpected emergency, which the Greek\nRhetoricians call a circumstantial disagreement.[50]\n\nXXIX. When there is any accidental collision between one part of\na written document and another, Cicero, in the second book of his\ntreatise ON INVENTION, has given rules for deciding which of them ought\nto have the preference. Though his arrangement is not very accurate,\nyet it is by no means to be neglected. To supply therefore this defect\nof accuracy, the rules may be digested in the following order.\n\nIn the first place, a PERMISSION ought to give way to a COMMAND:\nbecause a permission appears to be granted only in case there is\nno weightier objection than its being an exception to a positive\nprecept, nor any preponderance in favour of an opposite determination.\nConsequently, as the writer to Herennius says, what is positively\nprescribed is more powerful than a bare permission.\n\nIn the next place what is required to be done at a FIXED time should\nhave the preference to what may be done at ANY time. From whence it\nfollows that the PROHIBITIONS of a treaty are generally of more weight\nthan its INJUNCTIONS: because the prohibitory power operates at ALL\ntimes. But it is not so with injunctions, unless an express time for\ntheir fulfilment is named, or they contain a tacit prohibition.\n\nAmong those treaties, which, in the above named respects, are equal,\nthe preference is given to such as are more particular, and approach\nnearer to the point in question. For where particulars are stated,\nthe case is clearer, and requires fewer exceptions than general rules\ndo.[51]\n\nThose prohibitions which have a penalty annexed to them, are of greater\nweight than those, which have not; and those with a greater penalty are\nenforced in preference to those that have a less. Those engagements\nalso which are founded upon causes of less magnitude and importance\nought to give way to those which have more laudable and useful objects\nin view.\n\nLastly it is to be observed that a subsequent law or treaty always\nrepeals a former.\n\nFrom what has been said an inference may be drawn in favour of sworn\ntreaties or agreements that they ought to be taken in the most usual\nacceptation of the words, rejecting all implied limitations and\nexceptions, and such as are not immediately necessary to the subject.\nConsequently in a case, where a sworn treaty or engagement may happen\nto clash with another not enforced by the obligation of an oath, the\npreference ought to be given to the former.\n\nXXX. It is often asked whether in doubtful points, a contract should be\ndeemed perfect, before the writings are made and delivered. We find\nin Appian's history of the Mithridatic war, that it was upon this very\nground Murena objected to the convention between Sylla and Mithridates.\nHowever it appears plain, unless it has been settled to the contrary,\nthat writing ought to be considered admissible as evidence of a\ncontract, though not as part of the substance, otherwise it is usually\nexpressed, as in the truce with Nabis, which was to be ratified from\nthe day the terms were WRITTEN and DELIVERED to him.\n\nXXXI. We can by no means admit the rule laid down by some writers,\nwho maintain, that all engagements of kings, and states, ought to be\nexplained, as far as it is possible, upon the principles of the Roman\nlaw: unless indeed it can be made to appear that among some states, in\ntheir intercourse with each other, the CIVIL LAW is received as the LAW\nOF NATIONS; a presumption which ought not to be hastily granted.\n\nXXXII. As to the doubt, which Plutarch advances in his Symposiacs,\nwhether the words of the party offering, or those of the one accepting\na condition ought to be most attended to, it appears that where the\nparty accepting the terms is the promiser, the nature and substance\nof the transaction will depend upon his words, if they are absolute\nand unqualified. For if the offer is regarded as a positive engagement\nto do certain acts, then the full extent of it will be seen by the\nnecessary repetition of the same words in the promise. But before a\ncondition is accepted, it is evident, as was seen in the chapter on\npromises, that the promiser is not bound to its fulfilment; for no\nright has been conferred by the one party, or acquired by the other.\nTherefore the offer of a condition of this kind does not amount to a\nperfect promise.\n\n\n\n\nCHAPTER XVII.\n\nON DAMAGES OCCASIONED BY INJURY AND THE OBLIGATION TO REPAIR THEM.\n\n On Damages occasioned by injury, and the obligation to repair\n them--Every misdemeanor obliges the aggressor to repair the\n loss--By loss is meant any thing repugnant to right strictly so\n called--Distinction between fitness and strict right--Loss or\n diminution of possession includes every injury done to the produce\n as well as the property itself--Loss estimated from the time that\n gain ceases--Injuries done by principals--By accessories--Injuries\n done by the neglect of principal or of secondary agents--What\n persons are implicated in those charges, and in what degrees--The\n parties engaged answerable for all consequences--The case where\n homicide or any other act of violence ensues--Case of robbery--Or\n theft--Promises obtained through fraud or unjust fear--In what\n cases the consequences are imputable to the suffering party--How\n far the law of nations authorises states to take advantage of an\n enemy's fear--How far sovereigns are answerable for any acts of\n violence committed by their subjects--The case where subjects in\n violation of their sovereign's permission and orders commit acts\n of piracy upon allied or neutral states--No one answerable by the\n law of nature for the mischief done by his cattle, his slaves,\n or his ship--Damages allowed for injuries done to reputation or\n honour--What kind of reparation allowed.\n\n\nI. It has been said above that the rights due to us arise from three\nsources, which are contract, injury and law. It is unnecessary here\nto dwell upon the nature of contracts which has been already so fully\ndiscussed. The next point therefore to which we proceed is an inquiry\ninto the rights resulting to us from injuries received. Here the name\nof crime or misdemeanor is applied to every act of commission or\nneglect repugnant to the duties required of all men, either from their\ncommon nature or particular calling. For such offences naturally create\nan obligation to repair the loss or injury that has been sustained.\n\nII. By loss is meant a diminution of what any one possesses, whether\nit be a right derived to him purely from the law of nature, or from\nthe addition of human authority, that is from the law of property,\ncontract, or civil law. God has given life to man, not to destroy,\nbut to preserve it; assigning to him for this purpose a right to the\nfree enjoyment of personal liberty, reputation, and the controul over\nhis own actions. The manner, in which property and contracts convey\nto any one a right to things, as well as to the service of another,\nhas been shewn in the preceding part of this treatise. In the same\nmanner from the law every man derives his peculiar right; because the\nlaw has the same, if not greater power over persons and things than\nindividuals themselves have. Thus by the appointment of law, a ward\nhas a right to demand the strictest diligence of a guardian, the state\nof a magistrate, and not only the state, but every subject has a right\nto require it; where the law expressly declares or evidently implies\nthat certain acts shall be performed. But the bare circumstance of an\naction being fit or proper gives not the right of POLITICAL justice to\ndemand its performance, nor does the neglect of it entitle the party\nsuffering to any legal redress. Because it does not follow that a thing\nmust belong to a person because it is fit or beneficial for him. Thus,\nas Aristotle says, there is no actual injustice, though it may be\nilliberal to refuse assisting another with money. To the same purpose\nCicero, in his speech for Cneius Plancus, says, that giving their votes\nto whom they please, or withholding them if they think proper, is the\ntrue characteristic of a free people. He afterwards, indeed, corrects\nhis assertion by adding, that they may happen to do what they like,\nrather than what they ought to do, taking the word OUGHT to signify\npropriety.\n\nIII. A precaution is necessary here, in order to avoid confounding\nthings of a different kind.\n\nNow those who are entrusted with the power of appointing magistrates,\nare bound, from motives of public good, to chuse the properest persons,\nand this is what the state has a RIGHT to require of them. They are\nbound therefore to repair any loss which the state may sustain by the\nchoice of improper persons. So any subject who is not disqualified,\nthough he has no peculiar right to an office, has an equal right with\nothers to endeavour to obtain it. In the exercise of which right,\nif, he is obstructed by violence or fraud, he may recover damages,\nnot to the full value of the office which he sought, but according\nto the probable loss which he may reasonably be supposed to have\nsuffered. Similar which is the right of a legatee, when a testator has\nbeen prevented by fraud or violence from making a bequest. For the\ncapability of receiving a legacy is a kind of right, which to obstruct\na testator from conferring, is undoubtedly an injury.\n\nIV. The loss or diminution of any one's possessions is not confined\nto injuries done to the SUBSTANCE alone of the property, but includes\nevery thing affecting the produce of it, whether it has been gathered\nor not. If the owner himself had reaped it, the necessary expence of\nreaping, or of improving the property to raise a produce, must also be\ntaken into the account of his loss, and form part of the damages. For\nit is an established maxim that no one ought to derive benefit from the\nloss of another.\n\nV. Damages are to be computed too, not according to any ACTUAL gain,\nbut according to the REASONABLE expectation of it. Which in the case of\na growing crop may be judged of by the general abundance or scarcity of\nthat particular season.\n\nVI. But besides the person immediately doing an injury, others may be\nbound also to repair the losses of the suffering party. For as a person\nmay be guilty of offences by negligence as well as by the commission\nof certain acts, so they may be done also by accessories, as well as\nprincipals. Now a principal in any crime or offence is one, that urges\nto the commission of it, that gives all possible consent, that aids,\nabets, or in any shape is a partner in the perpetration of it.\n\nVII. An accessory is one who gives his counsel, approbation, and\nassent. For where is the difference, says Cicero, in his second\nPhilippic, between advising an act, and approving of it?\n\nVIII. and IX. The obligation to repair the losses suffered by\nnegligence may be considered in a two-fold light. Firstly, when any\nperson, whose peculiar office it is, neglects either to forbid the\ncommission of an injury, or to assist the injured party. And secondly,\nwhen the person, who ought to do it, either does not dissuade from the\ncommission of an offence, or passes over in silence, what he is bound\nto make known. In these cases, when it is said that a person OUGHT to\ndo, or to forbear doing certain actions, it is meant that he is bound\nby that right, which strict justice requires, whether that duty arises\nfrom law, or from the capacity, which the person bears. For though it\nmay be wrong to omit any duty enjoined by the law of charity, there\ncan be no redress for such omission, but every LEGAL REMEDY must be\nfounded on some PECULIAR RIGHT.\n\nX. It is to be observed also that all the parties above-mentioned, if\nthey have been the real occasion of loss to any one, or have abetted\nthe person doing him the injury, are so far implicated in the guilt,\nas to be liable to full damages, or, at least, proportionably to the\npart they have taken. For it may and often does happen that a crime\nwould have been committed by an offender, even without the aid of\nother principals or accessories. In which case he alone is answerable.\nYet neither principals nor accessories will be allowed to plead as an\nexcuse, that if they had not aided or abetted, others would have been\nfound to assist and encourage the perpetrator in the commission of the\nact. Especially, if it appears that without such assistance from them\nthe crime would never have been committed. For those other imaginary\nabettors would themselves have been answerable, if they had given their\nadvice or aid.\n\nXI. In the scale of implication the first degree applies to those, who\nby their authority, or other means have compelled or urged any one\nto the commission of an offence. On failure of these the perpetrator\nhimself has the greatest share of guilt, and next to him, others who\nhave been concerned. In short, all individuals, whose hands have been\nengaged in the perpetration, are guilty, though they have not been the\nsole authors of the act.\n\nXII. Now he who is answerable for an act, is answerable for all\nthe injurious consequences attending it. Seneca in one of his\ncontroversies, treating upon this point, puts the case of a plane-tree\nset on fire, by which a house was burnt, and he subjoins the following\nremark, \"although the mischief went further than was intended, yet\nthe person doing it was answerable for the WHOLE, as much, as if\nhe had done it by design. For any one that puts his defence upon\nthe plea of UNINTENTIONAL INJURY, ought to have abstained from all\nmischief whatsoever.\" When Ariarathes, king of Cappadocia had wantonly\nobstructed the channel of the river Melas, which discharges itself\ninto the Euphrates, the swell of waters bursting the mounds, the\nEuphrates rose to such a height, as to occasion excessive damage to the\nCappadocians, the Galatians, and the Phrygians. Upon which the decision\nof the matter being left to the Romans, they imposed upon him a fine of\nthree hundred talents.\n\nXIII. XIV. XV. and XVI. But to proceed with other instances of injury,\nwhich render the parties committing them liable to repair the losses\noccasioned thereby. The case of excusable homicide may be alleged as\none, wherein the person, who has committed it, is bound to make every\nreasonable compensation to the family, dependents, and connections\nof the deceased party, in proportion to the loss, which they have\nsustained from his death. As Michael the Ephesian in the fifth book\nof Aristotle's Ethics has observed, that the compensation made to the\nparents, the wife or children of the deceased is nearly the same as if\nit could be made to himself. The writer is here speaking of excusable\nhomicide, that is, when the person by whom it is committed, does it not\nin the immediate discharge of some legal duty. Wherefore if any one, in\ndefending himself, has killed another from whom he might have escaped,\nthough he may have violated the law of charity, yet he has not incurred\nthe penalty of a capital offence.\n\nUpon the same principle the person, who has maimed or mutilated\nanother, will be bound to make him a compensation, proportionably to\nthe means of subsistence which he is deprived of by such a calamity.\n\nA thief or a robber is bound to restore what has been taken, and to\nreturn it with all the improvements it may have acquired, or to make\nreparation to the owner, in proportion to the gain, which the privation\nhas prevented him from making, or to the actual value of the thing\nitself. If the thing has been irretrievably consumed, the estimation of\ndamages must be made, according to a medium between the highest and the\nlowest value.\n\nTo this class of offences and due reparation may be referred all frauds\nupon the public revenue, all unjust decisions, or all false evidence,\nby which states or individuals are injured.\n\nXVII. Contracts, or promises obtained by fraud, violence or undue fear\nentitle the injured party to full restitution. For perfect freedom from\nfraud or compulsion, in all our dealings, is a RIGHT which we derive\nfrom natural law and liberty.\n\nWith the same class of offenders we may rank all men in office, who are\nunwilling to discharge their duty without a bribe.\n\nXVIII. When a person has HIMSELF been the occasion of the fraud or\nviolence, the consequences are imputable to his own conduct. For\nwhere a voluntary act gives rise to INVOLUNTARY consequences, those\nconsequences, considered in a moral light, are to be deemed the fruits\ngrowing out of the exercise of a free will.\n\nXIX. But to connect the preceding cases and arguments with public and\nnational concerns, it is necessary to observe, that it is a maxim\nintroduced and established by the consent of all nations that the wars\nwhich are declared and conducted by the authority of the sovereign\npower on both sides are alone entitled to the denomination of just\nwars: And the enemy has no right to demand restitution for what the\nprosecution of such wars has reduced him to abandon through fear. It\nis upon this principle we admit the distinction which Cicero has made\nbetween an enemy, towards whom the consent and law of nations oblige us\nto observe many common rights, and between robbers and pirates. For any\nthing given up to pirates or robbers, through fear, is no lawful prize:\nbut it may be recovered, unless a solemn oath of renunciation has been\ntaken. This is not the case with the captures made in just war.\n\nThe justification which Polybius makes for the Carthaginians, in the\nsecond Punic war, carries with it an appearance of equity, though it\nis not a question immediately founded upon the law of nations. They\nalleged as a reason for their making that war, that, when they were\nengaged in quelling a mutiny of their own mercenaries, the Romans had\ndeclared war, seized upon Sardinia, and levied contributions of money.\n\nXX. Sovereign Princes and States are answerable for their neglect, if\nthey use not all the proper means within their power for suppressing\npiracy and robbery. And on this account the Scyrians were formerly\ncondemned by the Amphictyonic council.\n\nWhen some of the states of the united Provinces had, on a particular\noccasion, granted commissions to many privateers, and those adventurers\nplundered friends and enemies alike, and became general pirates, it\nwas a subject of great discussion, whether those states were justified\nin having made use of the services of desperate and abandoned men,\nwithout exacting sufficient security for their good conduct. At that\ntime, it was maintained that they were bound to nothing more, than to\npunish or deliver up the offenders, if they could be found, and to see\njustice done by a forfeiture of their property. For they themselves\nhad neither authorised those UNJUST acts of plunder, nor shared in\nthe fruits of them. They had even strictly prohibited the privateers\nfrom molesting the subjects of friendly powers. As to their taking\nsecurities, there was no obligation to do that: for they had a right\nto grant a GENERAL commission to all their subjects to seize upon\nthe enemy's property: a thing, which had frequently been done. Nor\ncould that particular commission be considered as an act of injustice\nagainst either allies or neutrals; since even without such permission\nindividuals might have fitted and sent out armed vessels. The states\ncould not foresee, nor consequently provide against the misconduct of\nthose adventurers, who had exceeded their commission; and if nations\nwere to decline using the assistance of wicked men, no army could ever\nbe collected. And it has been confirmed by the authority both of France\nand England, that a sovereign cannot answer for every injury done to\nthe subjects of a friendly power by his naval or military forces;\nespecially if it is plain that they acted in violation of his orders.\n\nBut in what cases any one is released from being answerable for what\nis done by his subordinate agents, is a point not so much for the law\nof nations, as for the municipal law, and particularly the maritime\ncode of each country to decide. In a case similar to that alluded to,\na decision of the supreme court of judicature was made against the\nPomeranians two centuries at least before.\n\nXXI. It is the CIVIL law too, which makes an owner answerable for the\nmischief or damage done by his slave, or by his cattle. For in the eye\nof natural justice he is not to blame. So neither is the person, whose\nship, by running foul of another, has damaged it, though by the laws\nof many nations, and of ours among the rest, the damages are usually\ndivided between both parties, owing to the difficulty of deciding, who\nwas in fault.\n\nXXII. Damages are allowed too for any injury done to our honour or\nreputation, by assault, slander, or various other ways. In which, as\nwell as in theft and other crimes the nature of the offence is to be\nestimated by its consequences. For the reparation in such cases answers\nto the penalty imposed for crimes. And that reparation is made some\ntimes by acknowledging the injured party's innocence; and some times by\na compensation in money, which is a standard value of all things.\n\n\n\n\nCHAPTER XVIII.\n\nON THE RIGHT OF EMBASSIES.\n\n Right of Embassies, an obligation arising out of the law of\n nations--Where it obtains--Whether Embassies are always to be\n admitted--Dismissal or punishment of ambassadors engaging in\n plots not to be considered as a harsh measure, but an act of\n self-defence--A power to whom no ambassador has been sent,\n not bound to respect the rights of embassy--An enemy to whom\n an ambassador is sent bound to respect his rights--The law of\n retaliation no plea for ill treatment of an ambassador--This right\n of protection extends to an ambassador's suite, if he thinks proper\n to claim it--To his moveable property--Examples of obligation\n without the right of compulsion--Importance of the sacred character\n of ambassadors.\n\n\nI. Hitherto the pursuit of our inquiries has led us to examine those\nrights to which we are entitled by the law of nature, occasionally\ntouching upon those points where its authority is farther confirmed by\nthe voluntary law of nations. And that voluntary law as it is called,\ngives rise to certain obligations, which now remain for our discussion,\nand in which the rights of ambassadors form a leading feature. Almost\nevery page of history offers some remark on the inviolable rights of\nambassadors, and the security of their persons, a security sanctioned\nby every clause and precept of human and revealed law. Nor is it\nsurprising that the persons of those should be deemed inviolable,\nwho form the principal link in that chain, by which sovereigns and\nindependent states maintain their intercourse with each other. To offer\nviolence to them is not only an act of INJUSTICE, but, as Philip in his\nletter to the Athenians says, is acknowledged by all to be an act of\nIMPIETY.\n\nII. But whatever rights the law of nations may confer upon ambassadors,\nit is necessary in the first place to observe, that none are entitled\nto them, but those, who are sent by the sovereigns of independent\ncountries to each other. For the privileges of provincial, or municipal\ndeputies sent to the states general of any country are regulated by the\nparticular laws of that country and not by the law of nations.[52]\n\nThus we find, in the first book of Livy, an ambassador styling himself\na public messenger of the Roman People; and, in the sixth book of the\nsame historian, we have a declaration of the senate, confining the\nrights of embassies to the intercourse between foreign powers, and\nexcluding citizens from the same privileges in their transactions with\neach other. Upon this topic, the authority of Cicero may be cited, who,\nin order to shew the impropriety of sending ambassadors to Antony,\nobserves, that they are not dealing with a Hannibal or a foreign enemy,\nbut with one of their own citizens.\n\nNow Virgil has so clearly explained WHO are to be reckoned FOREIGNERS,\nthat we need not have recourse to lawyers, to understand what is so\nwell expressed by the poet, who says, \"I look upon every country as\nforeign, which owns not the sway of our sceptre.\" Aen. vii. 369.\n\nA state therefore connected with another though by an unequal treaty,\nif it retain its independence, will have a right of sending embassies.\nThe Princes of Germany, who were in some respects subject to the\nEmperor, as their head, being Sovereign Princes possessed the right of\nsending ambassadors to foreign states. But Kings who have been entirely\nsubdued in just war, and stripped of their dominions, have, with all\ntheir other sovereign rights, lost that of sending ambassadors. It was\nfor this reason, that Paulus Aemilius made prisoners of the messengers\nsent to him by Perseus, whom he had conquered.\n\nIn civil wars necessity sometimes gives birth to new rights in\nviolation of former rules. When for instance, a kingdom is so equally\ndivided between two parties, that it is a matter of doubt which of\nthem constitutes the nation, or in a disputed succession between two\nclaimants of the crown; the kingdom may be considered as forming two\nnations at the same time. Tacitus, considering each party in such\ncases, as entitled to the rights of the law of nations, condemns the\nFlavians for having, in the rage of civil dissensions, violated, in\nthe persons of the Vitellian ambassadors, those privileges, which\nare respected even among FOREIGN nations. Pirates and robbers, as\nthey form no civil community, cannot rest any claim to protection\nand support upon the law of nations. Tiberius, as we are informed by\nTacitus, when Tacfarinas sent ambassadors to him, spurned at the idea\nof treating with a robber, as with a lawful enemy. Yet sometimes a\npledge of public faith, and the rights of embassy are allowed to men of\nthat description, which was done by Pompey to the fugitives from the\nPyrenean forest.\n\nIII. There are two points upon which the privileges granted by the law\nof nations to ambassadors turn. In the first place, they have a right\nto be admitted into any country, and secondly to be protected from all\npersonal violence. Respecting the former of these points, there is\na passage in the eleventh book of Livy, where Hanno, a Carthaginian\nsenator inveighs against Hannibal for not having admitted into his camp\nambassadors, who came from the allies, and on their behalf; as he had\nthereby overturned the law of nations.\n\nBut this rule by no means compels nations to give an UNQUALIFIED\nadmission to all ambassadors. For that is what the law of nations\ncan never intend: it only prohibits the refusal of admission without\nsufficient grounds.\n\nThere are various motives which may afford a sufficient plea for\nsuch refusal. There may be an objection to the power who offers to\ntreat, to the person sent upon the embassy, or perhaps to the object\nof his mission. Thus at the suggestion of Pericles, Melesippus, the\nLacedaemonian ambassador, was sent out of the territories of Athens;\nbecause he came from an enemy, who had no pacific intentions. The\nsenate of Rome said, that they could receive no embassy from Carthage,\nas long as the Carthaginian army remained in Italy. The Achaeans\nrefused to admit the ambassadors of Perseus, who were secretly\nMEDITATING war against the Romans. Upon the same grounds Justinian\nrejected an embassy from Totilas, and the same was done by the Goths\nat Urbino to messengers from Belisarius. Polybius relates in the third\nbook of his history, that every power drove away the ambassadors of the\nCynethensians, as they were so infamous a people.\n\nWe have an instance of the second kind, where the objection is made to\nthe PERSON sent on an embassy, in the case of Theodore, who was called\nthe atheist, and whom Lysimachus refused to receive in the character\nof an ambassador sent from Ptolemy, and the same thing has frequently\nhappened to others, against whom peculiar motives of aversion have\nexisted.\n\nIn the third place, there may be sufficient grounds for refusing to\nadmit an ambassador, if the object of his mission be of a suspicious\nkind, as was the case with that of Rhabshakeh the Assyrian, whom\nHezekiah had reason to suspect of coming with a design to excite his\npeople to rebellion. Or the refusal may be justified, where it is not\nconsistent with the dignity or circumstances of one power to enter into\nany treaty, or intercourse with another. For this reason the Romans\nsent a declaration to the Aetolians, that they should send no embassy,\nbut with the permission of their general, and Perseus was not allowed\nto send one to Rome, but to Licinius. Jugurtha's ambassadors too, as\nSallust informs us, were ordered to leave Italy within the space of\nten days, unless they came with offers from that prince to surrender\nhimself, and his kingdom.\n\nThere may often be the best reasons for a sovereign's refusing to allow\nof a RESIDENT minister at his court; a practice, so general in the\npresent day, but totally unknown to the ages of antiquity.\n\nIV. As to the personal exemption of ambassadors from arrest,\nconstraint, or violence of any kind, it is a subject of some difficulty\nto determine, owing to the varieties of opinion entertained by the\nmost celebrated writers on the question. In the consideration of this\nmatter, our attention is directed in the first place to the personal\nprivileges and exemptions of ambassadors themselves, and next to those\nof their attendants, and their goods. With respect to their persons,\nsome writers are of opinion, that it is ONLY from UNJUST VIOLENCE,\nand ILLEGAL CONSTRAINT, that the law of nations protects ambassadors.\nFor they imagine that their privileges are to be explained according\nto the common principles of the law of nature. Others again suppose\nthat ambassadors are not amenable to punishment for ALL offences, but\nonly for such as amount to a transgression of the law of NATIONS, the\nprinciples of which are of such general extent, as to include the\nlaw of nature: consequently there can be no offences for which an\nambassador is not punishable, except for those actions that are made\nsuch by the positive rules of MUNICIPAL or CIVIL LAW.\n\nOthers again consider these public representatives of states and\ncrowned heads, as only liable to punishment for offences affecting\nthe dignity or governments of the sovereigns to whom they are sent.\nWhile, on the other hand, there are some writers who maintain that for\nany state to punish an ambassador for ANY CRIME WHATEVER is highly\ndangerous to the independence of foreign powers; but that all offenders\nof that description ought to be left to the laws of their respective\ncountries, to be punished or not according to their deserts, upon due\ncomplaint being made to the sovereigns by whom they were sent.\n\nSome few writers, indeed, in laying down the rule to be observed\nin such cases, have decided that an appeal should be made to other\nindependent and disinterested powers, which may be considered rather\nas a matter of DISCRETION, than of ABSOLUTE RIGHT. But the advocates\nof all these various systems have come to no definite conclusion in\nsupport of their favourite opinions. For this is a right which cannot,\nlike the law of nature, be established upon unchangeable rules, but\nderives all its efficacy from the will of nations. Nations if they\nhad thought proper, certainly might have laid down ABSOLUTE rules of\nsecurity for ambassadors, or coupled them with certain exceptions.\nThe argument is supported on one side by the urgent necessity of\nheinous crimes being punished, and on the other, the utmost latitude\nof exemption is favoured on account of the utility of embassies, the\nfacility of sending which ought to be encouraged by every possible\nprivilege, and security. To settle the point therefore, we must\nconsider how far nations have agreed among themselves upon these\nprinciples; the proofs of which can only be found in the evidence of\nhistory.\n\nMany instances may be produced in favour of both opinions. And in\ncases like this, the opinions of those celebrated for their judgment\nand knowledge will be of no small weight, but in some cases we must\nrest upon conjectures. On this subject the two eminent historians,\nLivy and Sallust, may be quoted as authorities, the former of whom,\nin mentioning the ambassadors of Tarquin, who had been guilty of\nfomenting treasonable conspiracies at Rome, says, \"that although they\ndeserved to be treated as enemies for their guilty conduct, yet the\nprivilege, which they derived from the law of nations, prevailed over\nevery other consideration.\" Here we see that the rights of ambassadors\ncould not be annulled even by the most criminal acts of hostility.\nBut the observation made by Sallust, relates rather to those who come\nin the train of an embassy than to ambassadors themselves. The law of\nnations surely then will not deny the same privilege to a principal,\nwhich it evidently allows to those who form but a subordinate part in\nthe public mission. The historian says, that \"Bomilcar was arraigned\nand tried rather upon principles of equity and natural justice, than\nin conformity to the law of nations, as he belonged to the train of\nJugurtha; who had come to Rome under the pledge of public faith.\"\n\nEquity and natural justice require punishment to be inflicted on ALL\noffenders, whereas the law of nations makes an exception in favour of\nambassadors, and those who have the public faith for their protection.\nWherefore to try or punish ambassadors, is contrary to the law of\nnations, which prohibits many things, that are permitted by the law of\nnature.\n\nThe law of nations, thus deviating from the law of nature, gives rise\nto those interpretations and conjectures, which reconcile with the\nprinciples of justice a greater extension of privileges than the law\nof nature strictly allows. For if ambassadors were protected against\nnothing more than violence and illegal constraint, their privileges\nwould confer no extraordinary advantage. Besides, the security of\nambassadors is a matter of much greater moment to the public welfare\nthan the punishment of offences. Because reparation for the misconduct\nof an ambassador may be looked for from the sovereign, by whom he is\nsent, unless that sovereign chuses to expose himself to hostilities\nby approving of his crimes. An objection to such privileges is made\nby some, who assert, that it is better for one person to be punished\nthan for whole nations to be involved in war. But if a sovereign has\nSECRETLY given his sanction to the misconduct of his ambassador, his\nAPPARENT intentions to punish that ambassador will not deprive the\ninjured power of the right to seek redress by commencing hostilities.\n\nOn the other hand, the right of ambassadors would rest upon a very\nslippery foundation if they were accountable, for their actions, to any\none but their own sovereigns. For as the interests of powers sending,\nand of those receiving ambassadors, are in general different, and some\ntimes even opposite, if a public minister were obliged to consult the\ninclinations of both, there would be no part of his conduct, to which\nthey might not impute some degree of blame. Besides although some\npoints are so clear, as to admit of no doubt, yet universal danger is\nsufficient to establish the equity and utility of a general law. For\nthis reason it is natural to suppose, that nations have agreed, in\nthe case of ambassadors, to dispense with that obedience, which every\none, by general custom, owes to the laws of that foreign country, in\nwhich, at any time, he resides. The character, which they sustain, is\nnot that of ordinary individuals, but they represent the Majesty of the\nSovereigns, by whom they are sent, whose power is limited to no local\njurisdiction. As Cicero, in his eighth Philippic, speaking of a certain\nambassador, says, \"he carried with him the Majesty of the Senate,\nand the authority of the State.\" From hence it is concluded, that an\nambassador is not bound by the laws of the country, where he resides.\nIf he commit an offence of a trivial nature, it may either be suffered\nto pass unnoticed, or he may be ordered to leave the country.\n\nPolybius relates an instance of an ambassador, who was ordered to leave\nRome, for having assisted some hostages in making their escape. Hence\nit is obvious why the Romans inflicted corporeal punishment upon an\nambassador of Tarentum, because the Tarentines were at that time their\nown subjects, by right of conquest.\n\nIf a crime is of a notorious nature, affecting the government, an\nambassador may be sent home, and his sovereign required to punish, or\ndeliver him up, as we read of the Gauls having done to the Fabians.\nBut, as we have before occasionally observed, all human laws are framed\nupon such principles, as, in cases of extreme necessity, to admit\nof equitable relaxations, among which the privileges of ambassadors\nmay be reckoned. But these extreme cases of necessity may, according\nto the law of nations, as will be seen hereafter, in discussing the\neffects of just and solemn war, prevent punishment in CERTAIN cases,\nthough not in ALL. For it is not the act of punishment itself, which is\nobjected to, either in respect to time, or manner, but the exemption is\ncreated to prevent the greater public evil, which might arise from the\npunishment of the offender. To obviate therefore any imminent danger,\nif no other proper method can be devised, ambassadors may be detained\nand interrogated. Thus the Roman Consuls seized the ambassadors of\nTarquin, previously taking care to secure their papers, to prevent\nthe evidence, which they might afford, from being destroyed. But if\nan ambassador excites and heads any violent insurrection, he may be\nkilled, not by way of punishment, but upon the natural principle of\nself-defence. The Gauls therefore might have put to death the Fabii,\nwhom Livy calls violators of the law of nature.\n\nV. Mention has before been frequently made of the exemptions, by which\nambassadors are protected from all personal constraint and violence,\nand it is understood that all powers are bound by a tacit agreement,\nas it were, from the time of admitting an ambassador, to respect these\nexemptions. It MAY and indeed sometimes DOES happen, that one power\ngives notice to another that no ambassador will be received, and if\none is sent, that he will be treated as an enemy. A declaration to\nthis effect was made by the Romans to the Aetolians, and, on another\noccasion, the Vejentian ambassadors were ordered to leave Rome, with a\nmenace, if they refused to comply, of being treated in the same manner\nas the Roman ambassadors had been treated by their king Tolumnius, who\nhad put them to death. The Samnites too forbade the Romans to go to any\ncouncil in Samnium, under pain of forfeiting their lives, or, at least,\ntheir personal safety.\n\nThe above law does not bind a power, through whose territories\nambassadors pass without leave. For, if they are going to an enemy\nof that power, or returning from him, or are engaged in any hostile\ndesign, they may lawfully be treated as enemies; which was done by the\nAthenians in the case of the messengers passing between the Persians\nand Spartans, and by the Illyrians in that of those, who carried on the\nintercourse between the Essians and Romans. Xenophon maintains that\nin certain cases they may be made prisoners, as Alexander made those,\nwho were sent from Thebes and Lacedaemon to Darius, and the Romans\nthose, whom Philip sent to Hannibal, and Latius those of the Volscians.\nFor to treat ambassadors with any degree of rigour, EXCEPT UPON THOSE\nSUFFICIENT GROUNDS, would be deemed not only a breach of the law of\nnations, but a personal offence against the sovereigns, to whom they\nare going, or by whom they are sent. Justin informs us, that Philip\nII, king of Macedon, sent an ambassador to Hannibal with credentials,\nempowering him to make an alliance, and that, when this ambassador\nwas seized and carried before the Senate of Rome, they dismissed him\nwithout farther molestation, not out of respect to the king, but to\nprevent a doubtful enemy from becoming a decided one.\n\nVI. But if an embassy, admitted by an ENEMY is entitled to all the\nprivileges of the law of nations, much more so is one, admitted by\na power UNFRIENDLY, but not engaged in ACTUAL HOSTILITIES. Diodorus\nSiculus says, that a messenger with a flag of truce claims all the\nsecurity of peace, even in the midst of war. The Lacedaemonians, who\nhad murdered the heralds of the Persians, were said by that act to\nhave confounded every distinction between right and wrong, as it is\nacknowledged by all nations. For legal writers lay it down as a rule,\nthat to offer personal violence to ambassadors, whose characters are\ndeemed sacred, is a defiance of the law of nations, and Tacitus calls\nthe privileges we are now discussing, the rights of embassy, sanctified\nby the law of nations.\n\nCicero, in his first speech against Verres, asks, if ambassadors ought\nnot to be safe in the midst of an enemy's country, or even in his camp?\nInnumerable other instances of this kind might be produced from the\nhighest authorities both ancient and modern. And it is with reason that\nsuch privileges are revered, for in the midst of war many circumstances\narise, which cannot be decided but through ambassadors, and it is\nthe only channel through which proposals of peace can be made, and\nconfirmed.\n\nVII. It is frequently made a subject of inquiry, whether the ambassador\nof a sovereign, who has exercised any act of cruelty or rigour, will be\nsubject to the law of retaliation. History furnishes many instances,\nin which punishment has been inflicted in such a manner. But history\nis sometimes nothing more than a catalogue of actions marked with\ninjustice, and ungovernable fury. Whereas the law of nations, by its\nprivileges, designs to secure the dignity not only of sovereigns\nthemselves, but also that of the ambassadors whom they employ.\nConsequently there is a tacit agreement understood to be made with\nthe latter, that HE shall be exempt, not only from any ill treatment,\nthat may affect the principal, but from such likewise, as may affect\nhimself. So that it was a magnanimous answer, conformable to the law\nof nations, which Scipio made, when the Roman ambassadors had been\nill-treated by the Carthaginians, and the Carthaginian ambassadors were\nbrought before him, upon his being asked, in what manner they should\nbe treated, he replied, not as the Roman ambassadors had been by the\nCarthaginians. Livy adds, that he said, he would do nothing unbecoming\nthe character and laws of the Roman people. Valerius Maximus assigns\nthe same language to the Consuls, on an occasion similar, but prior to\nthis. In addressing Hanno, they said, \"the pledge of faith, which our\nstate has given, releases you from any such fear.\" For even at that\ntime, Cornelius Asina, in violation of his public character, had been\narrested and thrown into prison by the Carthaginians.\n\nVIII. The train too of an ambassador, and all the plate belonging to\nhim are entitled to a peculiar kind of protection. Which gave rise to\nthe passage in the ancient song of the Heralds, \"O Sovereign, do you\nmake me a royal messenger from the Roman citizens? and do you confer\nthe same privileges on my train and every thing, which belongs to me?\"\nAnd by the Julian law, an injury affecting not only ambassadors, but\neven their attendants, is pronounced to be a violation of public right.\n\nBut these privileges of attendants are only granted so far as an\nambassador himself may think proper: so that if any of them has\ncommitted an offence, he must be required to deliver up the offender to\npunishment. He must be REQUIRED to give him up. Because no violence,\nin taking an offender of that description must be used. When the\nAchaeans had arrested some Lacedaemonians who were along with the\nRoman ambassadors, the Romans raised a great outcry against the act,\nas a violation of the law of nations. Sallust's opinion in the case of\nBomilcar has already been referred to.\n\nBut should the ambassador refuse to give up such offender, redress must\nbe sought in the same manner, as would be done with respect to the\nambassador himself. As to his authority over his household, and the\nasylum, which he may afford in his house to fugitives, these depend\nupon the agreement made with the power, to whom he is sent, and do not\ncome within the decision of the law of nations.\n\nIX. Neither can the moveable property of an ambassador, nor any thing,\nwhich is reckoned a personal appendage, be seized for the discharge of\na debt, either by process of law, or even by royal authority. For, to\ngive him full security, not only his person but every thing belonging\nto him must be protected from all compulsion. If an ambassador then\nhas contracted a debt, and, as is usual, has no possession in the\ncountry, where he resides: first of all, courteous application must be\nmade to himself, and, in case of his refusal, to his sovereign. But\nif both these methods of redress fail, recourse must be had to those\nmeans of recovery, which are used against debtors residing out of the\njurisdiction of the country.\n\nX. Nor is there, as some think, any reason to fear, that if such\nextensive privileges were established, no one would be found willing\nto enter into any contract with an ambassador, or to furnish him with\nnecessary articles. For the same rule will hold good in the case of\nambassadors, as in that of Kings. As sovereigns, who for the best\nof reasons, are placed above the reach of legal compulsion, find no\ndifficulty in obtaining credit.\n\nXI. The importance of such exemptions may be easily inferred from the\ninnumerable instances, in which both sacred and profane history abound,\nof wars undertaken on account of the ill-treatment of ambassadors. The\nwar which David made against the Ammonites, on that account, affords\nus a memorable instance from holy writ; and as a profane writer,\nCicero may be cited, who deemed it the most justifiable ground of the\nMithridatic war.\n\n[Illustration: _PEACE_\n\n_By Gari Melchers--From a panel painting in Library of Congress._]\n\n\n\n\nCHAPTER XIX.\n\nON THE RIGHT OF BURIAL.\n\n Right of burying the dead founded on the law of nations--Origin\n of this right--Due to enemies--Whether due to those guilty\n of atrocious crimes--Whether to those, who have committed\n suicide--Other rights also authorised by the law of nations.\n\n\nI. The right of burying the dead is one of those originating in the\nvoluntary law of nations. Next to the right of ambassadors Dion\nChrysostom places that of burying the dead, and calls it a moral act,\nsanctioned by the unwritten law of nature: And Seneca, the elder, ranks\nthe law, which commands us to commit the bodies of the dead to their\nparent earth, among the UNWRITTEN precepts, but says, they have a\nstronger sanction than the RECORDED laws of all ages can give. For, in\nthe language of the Jewish writers, Philo and Josephus, they are marked\nwith the seal of nature, and under the name of nature, we comprehend\nthe customs, that are common to all mankind, and agreeable to natural\nreason.\n\nWe find it some where said by Aelian, that our common nature calls\nupon us to cover the dead, and some writer, in another place, observes\nthat all men are reduced to an equality by returning to the common\ndust of the earth. Tacitus informs us, in b. vi. of his Annals, that,\nwhen Tiberius made a general massacre of all, who had been connected\nwith Sejanus, and that he forbad them the rites of burial, every one\nwas struck with horror to see the last offices of humanity refused;\noffices, which Lysias the orator calls the common hopes of our nature.\n\nAs the ancients measured the moral character of every people by their\nobservance or neglect of these rights, in order to give them a greater\nappearance of sanctity, they ascribed their origin to the authority and\ninstitutions of their Gods; so that in every part of their writings we\nmeet with frequent mention of the rights of ambassadors, and the rights\nof burial, as founded upon divine appointment.\n\nIn the Tragedy of the Suppliants, Euripides calls it the law of the\nGods, and in the Antigone of Sophocles, the heroine makes the following\nreply to Creon, who had forbidden any one under pain of death, to\ngive the rites of burial to Polynices, \"A prohibition, like this, was\nnot revealed by the supreme will, nor by that heaven-born justice,\nwhich has established those laws of respect for the dead: nor did\nI think that you could command mortals to transgress the unwritten\nand inviolable laws of God. They were not established to-day, nor\nyesterday, but from all eternity and will for ever be in force. Their\nsources are unknown. Am I through fear of a mortal, and by obeying his\nunjust commands, to incur the wrath of Heaven?\"\n\nThe authority of Isocrates, and of Herodotus, and that of Xenophon, in\nthe sixth book of his Grecian History, may be appealed to in support of\nthe honours, that have at all times been paid to the dead. In short,\nthese offices of humanity are recommended by the conspiring testimony\nof the orators, historians, poets, philosophers and divines of all\nages, who have dignified them with the names of the most splendid\nvirtues.\n\nII. There seems to be no general agreement of opinion upon the\norigin of funeral rites, and the variety of ways, in which they were\nperformed. The Egyptians EMBALMED, and most of the Greeks BURNED the\nbodies of the dead before they committed them to the grave. Cicero, in\nthe 22d chapter of his second Book on Laws, speaks of the interment\nalone, which is now in use, as the most ancient method, and that, which\nis most congenial to nature, and in this he is followed by Pliny.\n\nSome think that men paid it as a VOLUNTARY debt of nature, which\nthey knew that, AT ANY RATE, they would be obliged to discharge. For\nthe divine sentence, that the body should return to the dust, from\nwhich it was taken, was not passed upon Adam only, but, as we find it\nacknowledged by the writings of Greece and Rome, extended to the whole\nhuman race. Cicero, from the Hypsipyle of Euripides, says, \"Earth\nmust be returned to earth,\" and in the twelfth chapter of Solomon's\nEcclesiastes, there is a passage to the same purport, that \"the dust\nshall return to the earth as it was, but the spirit to God, who gave\nit.\" Euripides has enlarged on this subject in the character of\nTheseus in his Suppliants, \"Suffer the dead to be laid in the lap of\nthe earth; for every thing returns to its original state, the spirit\nto heaven, and the body to the earth: Neither of them is given in\nplenary possession, but only for a short use: The earth soon demands\nback the bodies, to which she had given birth and nourishment.\" In the\nsame manner Lucretius calls the earth \"a prolific parent and a common\ngrave.\" Pliny also describes the earth, as receiving us at our birth,\ncherishing our growth, supporting us to the very last, and, when all\nthe other parts of nature have forsaken us, taking us to her maternal\nbosom, and covering us with a mantle.\n\nThere are some, who think that the custom of burial was bequeathed\nto us by our first parents as a testamentary hope of a resurrection.\nFor we are instructed by Democritus to believe, that our bodies are\npreserved in the earth under the promise of a restoration to life. And\nChristians in particular have frequently ascribed the custom of decent\nburial to the same hope. Prudentius a Christian poet says, \"What can\nbe the meaning of hallowed rocks, or splendid monuments, except that\nthey are the depositories of bodies, consigned not to death, but to a\ntemporary sleep?\"\n\nBut the most obvious explanation is to be found in the dignity of man,\nwho surpassing other creatures, it would be a shame, if his body were\nleft to be devoured by beasts of prey. It is an act of compassion\nthen, said Quintilian, to preserve the bodies of men from ravages of\nbirds and beasts. For to be tore by wild beasts, as Cicero observes\nin his first book ON INVENTION, is to be robbed of those honours, in\ndeath, which are due to our common nature. And the Roman Poet, makes a\nlamentation over one of his heroes, that he had no pious mother to lay\nhis body in the grave, but he would be left a prey to birds, or thrown\ninto the river as food for fishes. Aen. x. 557-560.\n\nBut to speak from still higher authority, God, by the mouth of his\nprophets, threatens the wicked that they shall have burial like that\nof the brutes, and that the dogs shall lick their blood. Such a menace\ndenounced against the wicked, as a punishment, shews that it is an\nindignity done to our nature, when, in the words of Lactantius, the\nimage of God is cast out, to the insults of beasts of prey. But in such\nindignity if there was even nothing repugnant to the feelings of men,\nstill the nakedness and infirmities of our perishable nature should not\nbe exposed to the eye of day.\n\nConsequently the rights of burial, the discharge of which forms one\nof the offices of humanity, cannot be denied even to enemies, whom a\nstate of warfare has not deprived of the rights and nature of men. For,\nas Virgil observes, all animosity against the vanquished and the dead\nmust cease. Aen. xi. 104. Because they have suffered the last of evils\nthat can be inflicted. \"We have been at war, I grant, _says Statius_,\nbut our hatred has fallen, and all our enmity is buried in the grave.\"\nAnd Optatus Milevitanus assigns the same reason for reconciliation. \"If\nthere have been struggles among the living, your hatred surely must be\nsatisfied with the death of an adversary. For the tongue of strife is\nnow silenced.\"\n\nIII. Upon the principles advanced above, it is agreed by all that\npublic enemies are entitled to burial. Appian calls it the common right\nof war, with which, Tacitus says, no enemy will refuse to comply. And\nthe rules, respecting this, are, according to Dio Chrysostom, observed,\neven while the utmost rage of war still continues. \"For the hand of\ndeath, _as the writer just quoted observes_, has destroyed all enmity\ntowards the fallen, and protected their bodies from all insult.\"\nExamples to this purpose may be found in various parts of history.\nAlexander ordered those of the enemy, that were killed at the battle\nof Issus to be honoured with the rites of burial, and Hannibal did\nthe same to Caius Flaminius, Publius Aemilius, Tiberius Gracchus, and\nMarcellus, the Roman Generals. So that you would suppose, says Silius\nItalicus, he had been paying these honours to a Carthaginian General.\nThe Romans treated Hanno, and Pompey Mithridates in the same manner. If\nit were necessary to quote more instances, the conduct of Demetrius on\nmany occasions, and that of Antony to king Archelaus might be named.\n\nWhen the Greeks were at war with the Persians, in one part of their\nmilitary oath they swore to bury all the dead belonging to the ALLIES,\nand when they were victorious, to bury even the BARBARIANS. After\na battle, it was usual for both sides to obtain leave to bury the\ndead. Pausanias, in his account of the Athenian affairs, mentions the\npractice of the Athenians who buried the Medes, regarding it as an act\nof piety due to all men. We find from the Jewish writers, that for the\nsame reason, their high priests, who were forbidden to come near a\ndead body, if they found one, were obliged to bury it. But Christians\ndeemed BURIAL an act of such importance, that they would allow their\nchurch-plate to be melted down, and sold to defray the expences as they\nwould have done to maintain the poor, or to redeem captives.\n\nThere are some few instances to the contrary, but they are reprobated\nby the universal feelings of mankind, and such cruelty deprecated in\nthe most solemn terms. Claudian calls it a bloody deed to plunder the\ndead, and still more so to refuse them the covering of a little sand.\n\nIV. Respecting those, who have been guilty of atrocious crimes, there\nis reason to entertain some doubt, whether the right of burial is due\nto them.\n\nThe divine law indeed, that was given to the Hebrews, and which is\nfraught with every precept of virtue and humanity, ordered those, who\nwere crucified, which was the most ignominious kind of punishment that\ncould be inflicted, to be buried on the same day. Owing to this law, as\nJosephus observes, the Jews paid such regard to burial, that the bodies\nof those, who were executed publicly as criminals, were taken away\nbefore sun-set, and committed to the ground. And other Jewish writers\nare of opinion that this was intended as a degree of reverence to the\ndivine image, after which man was formed.\n\nTo allow burial to criminals must have been the practice in the time\nof Homer: for we are told, in the third book of the Odyssey, that\n\u00c6gisthus, who had added the crime of murder to that of adultery, was\nhonoured with funeral ceremonies by Orestes, the son of the murdered\nking. It was the custom with the Romans, as may be seen from Ulpian,\nnever to refuse giving the bodies of criminals to their relatives, to\nbury. The Emperors, Diocletian, and Maximian, in a rescript, declared,\nthat they did not refuse to deliver up, for burial, those, who had\ndeservedly been put to death for their crimes.\n\nIn reading the history of civil wars; we find more frequent instances\nof indignities offered to the dead, than in the accounts of any foreign\nwars. In some cases, the bodies of executed criminals are exposed to\npublic view, and hung in chains, a custom the propriety of which is\nvery much doubted both by Theological and Political writers. So far\nfrom approving of the practice, we find such writers bestowing praises\nupon many, who had ordered funeral honours to be paid to those, who\nwould not themselves have allowed the same to others. An action of this\nkind was done by Pausanias the Lacedaemonian, who, being urged by the\npeople of Aegina to retaliate upon the Persians for their treatment\nof Leonidas, rejected the advice, as unbecoming his own character and\nthe Grecian name. The Pharisees allowed burial even to King Jannaeus\nAlexander, who had treated the dead bodies of their countrymen with\nevery kind of insult. Though indeed on certain occasions, God may have\npunished some offenders with the loss of such a right, he did so by\nvirtue of his own prerogative, which places him above the restrictions\nof all law. And when David exposed the head of Goliah, it was done to\none, who was an alien, and a despiser of God, and might be justified by\nthat law, which confined the name and privileges of neighbour to the\nHebrews.\n\nV. There is one thing not improper to be observed, that the rule\nprevailing among the Hebrews with respect to burying the dead,\ncontained an exception, as we are informed by Josephus, excluding\nthose, who had committed suicide. Nor is it surprising that a mark of\nignominy should be affixed to those, on whom death itself cannot be\ninflicted as a punishment. Aristotle in the fifth book of his Ethics,\nspeaks of the infamy universally attached to suicide. Nor is the\nobservation at all weakened by the opinions of some of the Grecian\npoets, that as the dead are void of all perception, they cannot be\naffected either by loss or shame. For it is a sufficient reason to\njustify the practice, if the living can be deterred from committing\nactions, for which they see a mark of infamy set upon the dead.\n\nIn opposition to the Stoics, and others, who admitted the dread of\nservitude, sickness, or any other calamity, or even the ambitious\nlove of glory to be a just cause of voluntary death, in opposition to\nthem, the Platonists justly maintain, that the soul must be retained\nin the custody of the body, from which it cannot be released, but at\nthe command of him, who gave it. On this subject there are many fine\nthoughts in Plotinus, Olympiodorus, and Macrobius on the dream of\nScipio.\n\nBrutus, following the opinions of the Platonists, had formerly\ncondemned the death of Cato, whom he himself afterwards imitated. He\nconsidered it as an act of impiety for any one to withdraw himself from\nhis allegiance to the supreme being, and to shrink from evils, which\nhe ought to bear with fortitude. And Megasthenes, as may be seen, in\nStrabo book XV. remarked the disapprobation, which the Indian sages\nexpressed of the conduct of Calanus: for it was by no means agreeable\nto their tenets, that any one, through impatience, should quit his post\nin life. In the fifth book of Quintus Curtius, there is an expression\nof King Darius to this effect, that he had rather die by another's\nguilty hand than by his own. In the same manner the Hebrews call death\na release, or dismission, as may be seen not only in the Gospel of St.\nLuke, ch. ii. v. 19, but in the Greek version of the Old Testament,\nGen. xv. 2, and Numb. xx, towards the conclusion: and the same way of\nspeaking was used by the Greeks. Plutarch, in speaking of consolation,\ncalls death the time, when God shall relieve us from our post.\n\nVI. There are certain other rights too, which owe their origin to\nthe voluntary law of nations, such as the right of possession from\nlength of time, the right of succession to any one who dies intestate,\nand the right resulting from contracts, though of an unequal kind.\nFor though all these rights, in some measure, spring from the law of\nnature, yet they derive their confirmation from human law, whether it\nbe in opposition to the uncertainty of conjecture, or to certain other\nexceptions, suggested by natural reason: points, all of which have been\nslightly touched upon in our discussions on the law of nature.\n\n\n\n\nCHAPTER XX.\n\nON PUNISHMENTS.\n\n Definition and origin of punishment--In what manner punishment\n relates to strict justice--The right of punishing allowed by\n the law of nature, to none, except to those, who are innocent\n of the crimes and misdemeanours to be punished--Difference\n of motive between human and divine punishment--In what sense\n revenge is naturally unlawful--The advantages of punishment,\n threefold--The law of nature allows any one to inflict punishment\n upon an offender, yet with a distinction--The regard which the\n law of nations pays to the benefit of the injured party, in the\n infliction of punishment--General utility of punishments--What\n is determined by the law of the Gospel, in this respect--Answer\n to the objections founded upon the mercy of God, as displayed in\n the Gospel--Capital punishments objected to as cutting off all\n possibility of repentance--Not safe for private Christians to\n inflict punishments, even when allowed to do so, by the law of\n nations--Prosecutions, for certain offences, to be carried on\n in the name of the public and not of individuals--Internal acts\n not punishable by man--Open acts, when inevitable through human\n infirmity not punishable--Actions, neither directly nor indirectly\n injurious to society, not punishable by human laws--The reasons\n of that exemption--The opinion, that pardon can never be granted,\n refuted--Pardon shewn to be allowable before the establishment of\n penal law--But not in all cases--Allowable also subsequently to the\n establishment of penalties--Internal and external reasons--Opinion,\n that there can be no just reason for dispensing with laws, except\n where such dispensation can be implied as authorised by the law,\n examined and refuted--Punishment estimated by the desert of\n the offender--Different motives compared--Motives which ought\n to restrain men from sin--Scale of offences according to the\n precepts of the Decalogue--Capacity of the offender--Punishment\n mitigated from motives of charity, except where there are stronger\n motives of an opposite kind--Facility or familiarity of crimes\n aggravates their nature--Clemency, proper exercise of--Views of\n the Jews and Romans in inflicting punishment--War considered as\n a punishment--Whether hostilities can justly be commenced for\n intended aggressions--Whether Kings and Nations are justified\n in making war to punish offences against the law of nature, not\n immediately affecting themselves or their subjects--The opinion,\n that jurisdiction is naturally necessary to authorise punishment,\n refuted--Distinction between the law of nature, and civil customs,\n and the divine voluntary law--The question, whether war can be\n undertaken to punish acts of impiety--considered--The being of\n God, whence known--Refusal to embrace the Christian religion not a\n sufficient cause of war--Cruel treatment of Christians, justifiable\n cause of war--Open defiance of religion punishable.\n\n\nI. In the preceding part of this treatise, where the causes, for which\nwar may be undertaken, were explained, it was considered in a two-fold\nlight, either as a reparation for injuries, or as a punishment. The\nfirst of these points having been already cleared up, the latter, which\nrelates to punishments, remains to be discussed, and it will require a\nmore ample investigation; for the origin and nature of punishment, not\nbeing perfectly understood, has given rise to many errors.\n\nPunishment taken in its most general meaning signifies the pain of\nsuffering, which is inflicted for evil actions. For although labour may\nsome times be imposed instead of punishment; still it is considered\nin that case, as a hardship and a grievous burden, and may therefore\nproperly be classed with sufferings. But the inconveniences, which\nmen are some times exposed to, by being excluded from the intercourse\nof society and the offices of life, owing to infectious disorders,\nor other similar causes, which was the case with the Jews on account\nof many legal impurities, these temporary privations are not to be\nstrictly taken for punishments: though from their resemblance to each\nother, they are often, by an abuse of terms, confounded.\n\nBut among the dictates laid down by nature, as lawful and just, and\nwhich the ancient Philosophers call the law of Rhadamanthus, the\nfollowing maxim may be placed, THAT IT IS RIGHT FOR EVERY ONE TO SUFFER\nEVIL PROPORTIONED TO THAT WHICH HE HAS DONE.\n\nWhich gave occasion to Plutarch, in his book on exile, to say that\n\"justice is an attribute of God, avenging all transgressions of the\ndivine law; and we apply it as the rule and measure of our dealings\nwith each other. For though separated by the arbitrary or geographical\nbounds of territory, the eye of nature looks upon all, as fellow\nsubjects of one great empire.\" Hierocles gives a fine character of\njustice, calling it the healing remedy of all mischief. Lactantius in\nspeaking of the divine wrath calls it \"no inconsiderable mistake in\nthose, who degrade human or divine punishment with the name of cruelty\nor rigour, imagining that some degree of blame must always attach to\nthe punishment of the guilty.\" What has been said of the inseparable\nconnection of a penalty with every offense is similar to the remark of\nAugustin, \"that to make a punishment JUST, it must be inflicted for\nsome crime.\" He applies the expression to explain the divine justice,\nwhere through human ignorance, the offence is often undiscoverable\nthough the judgment may be seen.\n\nII. There are diversities of opinion whether punishment comes under the\nrank of ATTRIBUTIVE or that of STRICT justice. Some refer it to justice\nof the attributive kind, because offences are punished more or less,\nin proportion to their consequences, and because the punishment is\ninflicted by the whole community, as it were, upon an individual.\n\nIt is undoubtedly one of the first principles of justice to establish\nan equality between the penalty and the offence. For it is the business\nof reason, says Horace, in one of his Satires, to apply a rule and\nmeasure, by which the penalty may be framed upon a scale with the\noffence, and in another place, he observes, that it would be contrary\nto all reason to punish with the rack a slave, who deserved nothing\nmore than the whip. I. Sat. iii. v. 77, and 119. The divine law, as\nmay be seen from the xxv. Chapter of Deuteronomy, rests upon the same\nprinciple.\n\nThere is one sense, in which all punishment may be said to be a\nmatter of strict justice. Thus, when we say that punishment is due\nto any one, we mean nothing more than that it is right he should be\npunished. Nor can any one inflict this punishment, but the person,\nwho has a right to do so. Now in the eye of the law, every penalty is\nconsidered, as a debt arising out of a crime, and which the offender\nis bound to pay to the aggrieved party. And in this there is something\napproaching to the nature of contracts. For as a seller, though no\nEXPRESS stipulation be made, is understood to have bound himself by all\nthe USUAL, and NECESSARY conditions of a sale, so, punishment being a\nnatural consequence of crime, every heinous offender appears to have\nVOLUNTARILY incurred the penalties of law. In this sense some of the\nEmperors pronounced sentence upon malefactors in the following manner,\n\"you have brought this punishment upon Yourselves.\" Indeed every wicked\naction done by design was considered as a voluntary contract to submit\nto punishment. For, as Michael the Ephesian observes on the fifth\nbook of Aristotle's Nicomachean Ethics, the ancients gave the name of\ncontract, not only to the voluntary agreements which men made with each\nother, but to the obligations arising from the sentence of the law.\n\nIII. But to whom the right of punishing properly belongs, is a matter\nnot determined by the law of NATURE. For though reason may point out\nthe necessity of punishing the guilty, it does not specify the PERSON,\nto whom the execution of it is to be committed.\n\nNatural reason indeed does so far point out the person, that it is\ndeemed most SUITABLE for a SUPERIOR ONLY to be invested with the power\nof inflicting punishment. Yet this demonstration does not amount to\nan ABSOLUTE NECESSITY, unless the word superior be taken in a sense\nimplying, that the commission of a crime makes the offender inferior\nto every one of his own species, by his having degraded himself from\nthe rank of men to that of the brutes, which are in subjection to man;\na doctrine, which some Theologists have maintained. Philosophers too\nagreed in this. For Democritus supposed that power naturally belonged\nto superior merit, and Aristotle was of opinion that both in the\nproductions of nature and art the inferior were provided for the use of\nthe superior parts.\n\nFrom this opinion there arises a necessary consequence, that in a case\nwhere there are equal degrees of guilt in two parties, the right of\npunishment belongs to neither.\n\nIn conformity to which, our Saviour, in the case of the woman taken\nin adultery, pronounced that whoever of the accusers was without sin,\nmeaning sins of equal enormity, should cast the first stone. John viii.\n7. He said so for this reason, because in that age the manners of the\nJews were so corrupt, that, under a great parade of sanctity, the\nmost enormous vices, and the most wicked dispositions were concealed.\nA character of the times which the Apostle has painted in the most\nglowing colours, and which he closes with a reproof similar to what\nhis divine master had given, \"therefore thou art inexcusable, O man,\nwhosoever thou art that judgest: for wherein thou judgest another thou\ncondemnest thyself; for thou that judgest doest the same things.\" Rom.\nii. 1. Applicable to which there is a remark of Seneca's, that \"no\nsentence, which is passed by a guilty person can have any weight.\"\nAnd in another place, the same writer observes, that \"if we look into\nourselves and consider whether we have been guilty of the offences we\nare going to condemn, we shall be more moderate in our judgments.\"\n\nIV. Another part of our inquiry respects the end proposed by\npunishment. For by what has hitherto been said, it was only meant to\nshew that in punishing the guilty no injury is done to them. Still\nthe absolute necessity of punishment does not follow from thence. For\nthe pardon of the guilty on many occasions has been considered as the\nmost beauteous feature in the divine and human character. Plato is\ncelebrated for his saying that \"justice does not inflict punishment\nfor the evils that are done and cannot be retrieved; but to prevent\nthe same from being done for the time to come.\" From Thucydides we\nfind that Diodorus in addressing the Athenians on the conduct of\nthe Mitylenaeans, advises them \"to forbear punishing their avowed\ninjustice, unless it was probable that the punishment would be attended\nwith some good effect.\"\n\nThese maxims may be true with regard to human punishments: for one man\nbeing so nearly allied to another by blood, no degree of suffering\nshould be inflicted, but for some consequent good. But the case is\ndifferent with respect to God, to whom Plato injudiciously applies\nthe above sentiments. For though the divine counsels will undoubtedly\nhave the good of men in view, as the end of all punishment, yet the\nbare reformation of the offender cannot be the sole object. Since the\ndivine justice, though tempered with mercy must adhere to the truth\nof the revealed word, which threatens the wicked with punishment or\ndestruction.\n\nThe honour therefore of God, as well as the example held up to men,\nwill be a consequence resulting from his punishment of the wicked.\n\nV. A dramatic writer has said that \"the pain of an enemy is a healing\nremedy to a wounded spirit,\" in which he agrees with Cicero and\nPlutarch: in the opinion of the former \"pain is mitigated by the\npunishment of an adversary,\" and in that of the latter \"satisfaction is\na sweet medicine to a troubled mind.\"\n\nBut a disposition like this, when stripped of all disguise and false\ncolouring, will be found by no means suitable to the reasonable soul of\nman, whose office it is to regulate and controul the affections. Nor\nwill that disposition receive any sanction from the law of nature, who\nin all her dictates, inclines to unite men in society by good will,\nrather than to separate them by cherishing animosity. For it is laid\ndown by reason, as a leading axiom in her code of laws, that no man\nshall do any thing which may hurt another, unless it be for the purpose\nof some evident and essential good. But the pain of an enemy considered\nsolely of such, is no benefit to us, but a false and imaginary one,\nlike that derived from superfluous riches or things of the same\nkind.[53]\n\nIn this acceptation revenge is condemned both by Christian teachers\nand heathen philosophers. In this respect, the language of Seneca\napproaches very near to the perfection of Christian morals. He calls\nrevenge, in its usual and proper acceptation, a term of inhumanity,\ndiffering from injury only in degree. For retaliation of pain can\nbe considered as nothing better than excusable sin. Juvenal, after\ndescribing the different tempers, over which revenge exercises the most\npowerful dominion, and shewing the amiable characters over which it has\nno influence, concludes it to be the pleasure of a little and infirm\nmind.\n\nFrom the preceding arguments it is plain that punishment cannot justly\nbe inflicted from a spirit of revenge. We proceed therefore to consider\nthe advantages attending its just infliction.\n\nVI. This seems the most proper place for reviewing those distinctions\nin the motives of punishment, which have been used by Plato in his\nGorgias, and by Taurus the philosopher in a passage quoted by Gellius\nin the fourteenth chapter of his fifth book. These distinctions seem to\nresult naturally from the end of all punishment. Plato indeed considers\nthe amendment of the offender, and the example given to others, as the\ntwo principal motives: but Taurus has added a third, which he calls\nsatisfaction, and which is defined by Clemens Alexandrinus, to be\nrepayment of evil, contributing to the benefit of both the aggrieved\nand avenging party. Aristotle passing over example as a motive,\nconfines the object of punishment to the amendment or correction of the\noffender. But Plutarch has not made the same omission: for he has said,\nthat \"where immediate punishment follows the execution of a heinous\ncrime, it both operates to deter others from committing the same crime,\nand administers some degree of consolation to the injured and suffering\nperson.\" And this is what Aristotle calls commutative justice. But\nthese matters require a more minute inquiry. We may observe therefore\nthat there is nothing contrary either to human or divine law, in\npunishments, which have the good of the offender, or that of the\ninjured party, or of any persons whatsoever in view.\n\nThe three proper ends are obtained by that kind of punishment, which\nsome philosophers have called correction, some chastisement, and others\nadmonition. Paulus the Lawyer, has given it the name of correction;\nPlato styles it a lesson of instruction, and Plutarch a medicine of\nthe soul, reforming and healing the sufferer, while it operates as a\npainful remedy. For as all deliberate acts, by frequent repetition,\nproduce a propensity, which ripens into habit, the best method of\nreforming vices in their earliest stage is to deprive them of their\nsweet savour by an infusion of subsequent pain. It is an opinion\nof the Platonists, repeated by Apuleius, that \"impunity and the\ndelay of reproof are more severe and pernicious to an offender than\nany punishment whatsoever,\" and, in the words of Tacitus, \"violent\ndisorders must be encountered with remedies proportionably strong.\"\n\nVII. The power of inflicting the punishment, subservient to this end,\nis allowed by the law of nature to any one of competent judgment, and\nnot implicated in similar or equal offences. This is evident as far\nas verbal reproof goes, from the maxim of Plautus, that \"to bestow\nmerited reproof upon a friend is useful, upon certain occasions, though\nby no means a grateful office.\" But in all kinds of constraint and\ncompulsion, the difference made between the persons, who are allowed,\nand who are not allowed to exercise it is no appointment of natural\nlaw, but one of the positive institutions of the civil law. For no\nsuch natural distinction could be made, any farther than that reason\nwould intrust parents with the peculiar use of such an authority,\nin consideration of their affection. But laws, in order to avoid\nanimosities, have, with respect to the authority of punishing, passed\nover the common kindred subsisting among mankind, and confined it to\nthe nearest degrees of relation: as may be seen in many records, and\nparticularly in the code of Justinian, under the title of the POWER\nOF RELATIVES TO CORRECT IN ORDER TO REFORM OFFENDERS. And Cyrus, in\nthe v. book and viii. chapter of Xenophon's history of the Expedition,\naddresses the soldiers to the following purport, \"If I punish any one\nfor his good, I am willing to submit to justice; but would it not be\nequally reasonable that parents and masters should submit to justice,\nfor having corrected children, or the Surgeon be responsible for having\nused the incision-knife, where the patient's case required it?\"\n\nBut this kind of corrective punishment does not extend to death, which\ncannot be considered, as a benefit in itself, except INDIRECTLY and\nBY WAY OF REDUCTION, as it is called by Logicians, who, in order to\nconfirm negatives, reduce them to things of an opposite kind. Thus,\nin Mark xiv. 21, when our Saviour says, that it were better for some,\nthey had never been born, so, for incurable dispositions, it is better,\nthat is would be a less evil, to die than to live; since it is certain\nthat by living they will grow worse. Plutarch calls such men a pest to\nothers, but the greatest pest to themselves. Galen says that capital\npunishments are inflicted to prevent men from doing harm by a longer\ncourse of iniquity, and to deter others by the fear of punishment,\nadding that it is better men should die, when they have souls so\ninfected with evil, as to be incurable.\n\nThere are some, who think that these are the persons meant by the\nApostle John, who describes them as sinning a sin unto death. But as\ntheir arguments are not satisfactory, charity requires that no one\nshould be deemed incorrigible, except upon the clearest grounds. So\nthat punishment with such an end in view can only be inflicted for\nimportant causes.\n\nVIII. The benefit accruing to an injured person from the punishment\nof an offender consists in his being secured in future against a\nrecurrence of the same injury from that offender, or from others.\nThere are three ways of preventing this recurrence--by removing the\noffender--by depriving him of the power of doing harm, or lastly by\ncompelling him to better habits of thought or action, which is the\nreformation produced by the punishment already spoken of. It is not\nevery kind of punishment, which can produce such effects; it must be\nopen and conspicuous, to operate as an example, that may deter others\nfrom the commission of the same crimes. A vindictive punishment,\ninflicted by an injured individual, or by any other person, when it\nis restrained by bounds and limitations of this kind, has nothing\nunlawful in it considering the law of nature by itself, apart from all\nhuman and divine institutions, and every adventitious circumstance,\nthat may create a deviation from the primitive dictates of nature. We\nhave said that it may be inflicted by any other individual, as well\nas by the injured person: for it is conformable to nature, that one\nman should assist another. But as our judgment is apt to be biassed\nby our affections, in cases, where our interest is concerned; since\nthe formation of families into states, judges have been appointed, and\ninvested with the power of punishing the guilty, whereby the natural\nliberty of personal redress, originally allowed to individuals, was\nabolished, or at least abridged. And it is only in places, on the seas\nfor instance, where no judicial remedy can be obtained, that this\nnatural liberty continues in force. There is a circumstance related\nof Julius Caesar, applicable to this subject. While he was only in a\nprivate station, being taken prisoner by some pirates, after he had\nredeemed himself by a sum of money, he applied to the proconsul for\nredress. But his application being neglected, he fitted out a certain\nnumber of ships, attacked and defeated the pirates, and ordered them\nall to be crucified.\n\nThe practice of private individuals, exercising punishment, was the\norigin of single combats, so familiar to the Germans before the\nintroduction of Christianity, and not yet sufficiently laid aside.\nWe are informed by Velleius Paterculus, in his second book, that the\nGermans were surprised to see the forms of Roman jurisprudence, and\nthose disputes, which they themselves decided by the sword, settled\nby law. By the Jewish law, the nearest in blood to the deceased were\nallowed to kill a murderer, if taken beyond the places of refuge.\nAnd the Jewish interpreters observe, that in GENERAL the infliction\nof punishment, as a retaliation for murder, it intrusted to no hand,\nbut that of the judge: as it is difficult for an individual in his\nown case to moderate his resentment. The same custom of allowing\nindividuals to avenge their own wrongs prevailed among the ancient\nGreeks, as we find from the words of Theoclymenes, in Homer's Odyssey.\nBut it prevailed most in countries, where public courts of justice were\nnot established. From hence St. Augustin defines those wars to be just,\nwhich are intended to avenge injuries. And Plato, in his twelfth book\nON A COMMONWEALTH, justifies the prolongation of hostilities, till the\naggressor is reduced to submit to just, and equitable terms.\n\nIX. GENERAL utility which was considered as the third end proposed\nby punishment, may be divided into the same number of parts, as the\nbenefit accruing from thence to individuals. For these are the objects\nin view, either to prevent the individual, who has injured one person,\nfrom doing injury to others: an object which can be accomplished only\nby removing the offender, disarming him of the means of farther injury,\nor by reforming him: or it may be inflicted to deter others from being\nallured, by an example of impunity, to commit acts of molestation or\nenmity. And the infliction of punishment, for such reasons, is a RIGHT\ngranted by the law of nature to every individual. Upon this principle,\nPlutarch observes in the life of Pelopidas, that good men are designed\nby nature for the office of perpetual magistracy, and superiority\nbelongs to those, in whom the characters of truth and justice unite.\n\nBut as it requires a painful degree of patience to examine into facts,\nand no inconsiderable share of skill and equity to affix the extent\nof punishments; in order to prevent quarrels from arising through the\npresuming conceit, which every man entertains of his own wisdom, and to\nwhich others are averse to yield; in all well regulated communities,\nit has been usual to select for the tribunals of justice those, who\nwere deemed worthy of such honour, or likely to become so, from their\nintegrity and wisdom. Democritus has said, there would have been no\noccasion for laws to prevent every man from living according to his own\nhumour, if one had not done injury to another. For envy was the origin\nof strife. But as we have just observed, that it happens, in the case\nof revenge, so in this kind of punishment, inflicted for the sake of\nexample, there are traces and remains of ancient law, in those places,\nand among those persons, that are subject to no CIVIL jurisdiction;\nand in certain other cases besides. Thus any Hebrew, according to the\ncustoms of that people, if he should turn away from God, or from the\nlaw of God, or should seduce others to false worship, might immediately\nbe put to death by any one whatsoever. The Hebrews call that an act of\nZEAL, which was first done by Phinehas, and which afterwards became\na custom. Thus Mattathias slew a Jew, who was polluting himself with\nGrecian rites. In the same manner, in the book commonly called the\nthird book of Maccabees, it is related that three hundred other Jews\nwere put to death by their own countrymen. Nor could any other pretext\nbe assigned for stoning Stephen, and conspiring against Paul. Philo,\nand Josephus abound in instances of this kind. There are many countries\nwhere we may trace the remains of primitive law, in the plenary power\nallowed to masters over their slaves, and to parents over their\nchildren, extending even to inflict the punishment of death. So the\nEphori of Sparta might put a citizen to death without the formality of\ntrial. From what has been said, it is easy to infer what punishment the\nlaw of nature authorises, and how far it has remained in force.\n\nX. We come now to consider whether the law of the Gospel has confined\nthat liberty within closer bounds. It has been observed in another\npart of this treatise, that it is not surprising that some things,\nwhich are allowed by natural and civil law, should be forbidden by the\ndivine law, owing to its great perfection, and the superiority of its\nrewards over any thing that human nature can bestow. To the attainment\nof which it is not unreasonable that virtues should be required, far\nexceeding the simple precepts of nature. Those kinds of correction that\nleave neither any mark of infamy, nor any permanent injury, but are\nsuited to the age, or other circumstances of the sufferer, if inflicted\nby those, who derive such a permission from human laws, for instance\nby parents, guardians, or masters, contain nothing repugnant to the\nprecepts of the Gospel, as may be clearly understood from the nature of\nthe thing itself. For they are remedies to the mind no less harmless\nthan medicines ungrateful to the palate are to the body. But as to\nrevenge the case is different. For the infliction of punishment, only\nto gratify resentment, so far from being conformable to the Gospel, has\nbeen shewn above to be repugnant even to the law of nature.\n\nThe Jewish law indeed not only forbids the cherishing of hatred against\na neighbour, that is, one of the same country and people, but requires\ncertain common acts of kindness to be bestowed even upon enemies of\nthat description. The Gospel therefore, comprehending all men under\nthe appellation of neighbour, not only forbids us to hurt our enemies,\nbut commands us to do them good; a commandment clearly stated in the\nGospel of St. Matthew. Yet the law permitted the Jews to seek revenge\nfor injuries of a more grievous kind, not with their own hands, but\nby appealing to the judge. But Christ does not give us the same\npermission, as appears from that opposition which he makes between\nthe permissions of former times, and those of his own law. \"You have\nheard that it was said an eye for an eye--but I say unto you, love your\nenemies, etc.\"\n\nFor although what follows relates peculiarly to the repelling of\ninjury, and, in some measure, abridges this permission, yet it passes\na much greater censure upon revenge, rejecting it as an indulgence\nsuitable only to a more imperfect, and carnal state.\n\nTo inflict punishment by way of retaliation was disapproved of even by\nthose of the Jews, who were distinguished for their worth and wisdom;\nbecause they regarded not only the LETTER, but the PURPOSE and SPIRIT\nof the law. This appears from Philo, in whose writings we find the\nJews of Alexandria, upon the calamity of Flaccus, their persecutor,\naddressing themselves to God in the following language, \"We do not\nrejoice, O Lord, in the calamity or punishment of an enemy, being\ntaught by thy holy laws to feel for the miseries of men.\" And in this\ncase we may apply that general command given by Christ to forgive\nall who have offended or injured us, that is, neither to do, nor to\nwish them evil, through resentment of the evil they have done to us.\nBut what can be said of revenge, not as regarding the past, but as\nproviding security for the future? Here too Christ requires of his\nfollowers the same disposition to pardon injuries, particularly, if the\noffender shews any probable signs of repentance. Luke xvii. 3. Eph.\niv. 32. Col. iii. 13. In those passages a full remission is intended,\nsuch a remission as restores the offender to his former situation of\nfriendship or confidence: and consequently nothing can be required of\nhim under the name of punishment. Besides, if there were no such marks\nof repentance, the reparation of a loss is not to be pursued with too\nmuch rigour; a doctrine inferred from the precept of Christ enjoining\nus to give up the garment along with the cloak.\n\nBut if it is likely that connivance at an offence will be attended\nwith imminent inconvenience and even danger to ourselves, we should be\ncontented with such securities as may be effectual, and at the same\ntime operate with as little prejudice as possible to the offender.\nFor even among the Jews, the law of retaliation was not in use, as we\nare informed by Josephus, and other writers of that nation. But in\naddition to the expence incurred, which the law treats of as a separate\npoint, the injured party usually received a pecuniary fine instead of\nretaliation; the repayment of expences being considered simply as a\nrestitution, and not a penalty.\n\nIt remains now to consider punishment, as providing for the PUBLIC and\nnot INDIVIDUAL security, which is accomplished either by removing the\nguilty person out of the way or by restraining him from doing farther\nmischief, or by deterring others through the severity of example, none\nof which means it has been clearly proved were abolished by Christ; for\nin giving his precepts he affirmed that he destroyed no part of the\nlaw. The law of Moses indeed, which in these respects was to remain\nin force as long as the Jewish Polity existed, strictly enjoined\nmagistrates to punish murder and other similar crimes. But if the\nprecepts of Christ could exist in conjunction with the law of Moses,\nas far as it imposed capital punishments, surely they may exist in\nconjunction with human laws, which in this respect are but an imitation\nof the divine laws.\n\nXI. Some, in support of an opposite opinion, allege the supreme mercy\nof God, as it is displayed in the new covenant, and which is given as\nan example for men, and for magistrates, in particular, to follow,\nwho, in the exercise of authority, execute the laws of the Deity. This\nopinion may in some measure be true, but not to that extent, which the\nauthors of it intend. For the great mercy of God displayed in the new\ncovenant has a peculiar reference to offences against the primitive\nlaw, or even against the law of Moses, before the time that men had\nreceived a knowledge of the Gospel. For offences committed after the\npromulgation of the Gospel, especially if they are accompanied with a\nhardened obstinacy, are treated with much severer judgments than any\nthat were declared by Moses. For God punishes sins of that kind not\nonly in a future state, but in the present life. But for sins of that\nkind, to obtain the act of mercy and indulgence, the offender must\ninflict punishment upon himself, not in a slight or trivial manner, but\nwith a heartfelt sorrow, and resolution to sin no more.\n\nIn the same manner it is maintained that if men are actuated by\nrepentance, they are ENTITLED to impunity. We do not say that men are\nnever actuated by sincere repentance; but it is not every kind of\navowal or acknowledgment, by which God is moved to remit the WHOLE of\na punishment, as appears from the case of David. As the supreme judge\ntherefore might dispense with the full penalty of the law, inflicting\ndeath, and yet exercise no inconsiderable severity upon offenders, so\nnow he may dispense with the sentence of eternal death, at the same\ntime leaving the sinner to find an early grave by the stroke of some\ncalamity, or by the hand of human justice.\n\nXII. and XIII. Another objection made against capital punishments is\nthat such a kind of sentence and execution is cutting off a criminal\nfrom all possibility of repentance. But those, who make the objection,\nmust know, that in cases of that kind, venerable and upright judges\nuse the greatest precautions, and suffer no one to be hurried away to\nexecution, without a reasonable time allowed for reflection and deep\nabhorrence of his crime: a repentance, which though prevented by the\ninterposing hand of death from producing the fruits of righteousness,\nwe have reason to suppose, from the case of the thief pardoned on the\ncross, may be accepted with God.\n\nBut if on the other hand it be said that longer life might have been of\nmore avail to serious repentance, we may observe that, in some cases,\nthe reply of Seneca may be made, that to men of that description death\nis often the greatest blessing which can be bestowed; for, in the words\nof Eusebius, their career of wickedness cannot otherwise be shortened,\nor reformed. These in addition to the preceding arguments in the former\npart of this treatise may be deemed a sufficient answer to those, who\nassert that all capital punishments, and even all punishments, without\nexception, are abolished by the precepts of our Saviour. The Apostle,\nconsigning to the office of kings the use of the sword, as an exercise\nof his divine commission to avenge all wrongs, instructs us to pray for\nkings, that, as true Christians, in their royal capacity, they may be a\nprotection to the innocent. An end, which even after the introduction\nof the gospel, could not easily be obtained, owing to the depravity of\nmankind, if the violence of some were not restrained by the exemplary\npunishment of others. Such authority is the more necessary, when even\nin the midst of so many examples and punishments, the lives of the\ninnocent are scarcely secure. There have been indeed, it cannot be\ndenied, happy instances where the sentence of death was changed for\nthat of perpetual labour, a practice, as we are informed by Diodorus,\nfollowed by Sabacon, king of Egypt, a prince renowned for his piety.\nBalsamon observes that the penal laws of Rome, inflicting death, were\nmost of them changed by the Christian emperors of later times, and\nother kinds of punishment were substituted, that the guilty might\nreceive deeper impressions of repentance, and their punishment operate\nas a more durable example.\n\nXIV. From what has been said, it may be inferred, how unsafe it is for\na private Christian, whether from motives of personal interest, or from\nthose of the public good, to take upon himself the punishment of an\noffender, and particularly to inflict death. Although, as it has been\nsaid before, it may, IN SOME CASES, be allowed by the law of nations. A\npermission, that has given rise to the laudable practice, prevailing in\nsome countries of furnishing adventurers with public instructions and\ncommissions to chase and capture pirates, wherever they may be found.\nBut those adventurers may be considered as discharging a public duty\nrather than as acting upon their own authority.\n\nXV. A custom not unlike to which prevails in many places, of not\nallowing individuals to bring criminal charges against others at their\nown pleasure: that office belonging to persons invested with public\nauthority to undertake it. So that no one can contribute towards\nshedding the blood of another, but as an act of necessary duty. In\nreference to this custom, a canon of the council of Eliberis excluded\nfrom the communion any believer who had been instrumental in causing\nthe proscription or death of another.\n\nXVIII.[54] It is proper now to consider whether all wicked acts are of\nthat kind, which are punishable by human laws. In reply to which we\nmay answer that they certainly are not.--In the first place, mere acts\nof the mind, or criminal intentions, though by subsequent confession,\nor some other accident, they may come to the knowledge of others, are\nnot punishable by human laws. Because, as it was proved in a former\npart of this treatise, it is not consonant to the law of nature, that\nINTENTIONS ONLY should give rise to any right, or obligation amongst\nmen. And in this sense the maxim of the Roman law is to be taken, THAT\nNO ONE DESERVES PUNISHMENT FOR MERE THOUGHTS. Yet this does not prevent\nintentions, when they have an influence upon the conduct, from being\nconsidered as actual deeds, and equally deserving of punishment.\n\nXIX. In the second place, even outward acts, cannot be punished by men\nwhere they arise through some inevitable infirmity of human nature. For\nalthough there can be no sin, except where there is a freedom of will,\nyet to be at all times free from all infirmity and sin, is more than\ncan be expected from the condition of man. So that Sopater, Hierocles\nand Seneca among the Philosophers; Philo among the Jews; Thucydides\namong the historians; and innumerable writers among Christians have\nmaintained that sin is interwoven with our very nature. Nay indeed, a\ndoubt may be entertained whether such acts can rightly and properly\nbe called sins. For though seeming to be voluntary actions, they will\nbe found, when minutely considered, not to proceed from a free and\ndeliberate exercise of the will. \"Laws, _says Plutarch in the life of\nSolon_, should be framed to suit possible cases, the legislator may\nobtain every beneficial end by punishing a few offenders, where the\nindiscriminate punishment of multitudes would be attended with no good\neffect.\"\n\nThere are some actions, which though not imputable to human nature\nitself, are inevitable consequences of the influence of bodily habits\non the mind. Actions like these are punishable in human courts, owing\nto the criminality of voluntary contracting, or of not sufficiently\nguarding against, those habits.\n\nXX. In the third place, human courts of justice cannot take cognizance\nof those offences, which neither directly nor indirectly, affect the\npublic or individuals. For no reason can be assigned, why such offences\nshould not be left to the judgments of God, whose all-seeing eye must\nknow them, whose equity will weigh them, and whose power can punish\nthem. It would be unnecessary therefore, and presumptuous in human\ntribunals to assume such decisions. However we must except from this\nrule those corrective kinds of punishment, designed for the reformation\nof offenders, even where their conduct is no way injurious to others.\n\nNeither are those actions punishable, which are directly opposite to\nthe virtues of compassion, liberality, or gratitude, in the performance\nof which virtues natural justice allows of no compulsion.\n\nXXI. The point, necessarily to be considered next, is the opinion,\nwhether it is lawful some times to grant pardon. For the Stoics\nmaintain it not to be lawful, as may be seen from a fragment in\nStobaeus, under the title of MAGISTRACY, from Cicero's speech for\nMurena, and towards the conclusion of Seneca's books on Clemency; but\ntheir arguments are fallacious, and unsubstantial. They say \"that\npardon is the remission of a penalty, that OUGHT to be paid; but a wise\nman does every thing, which he OUGHT to do.\" Here the fallacy lies in\nthe use of the word OUGHT. For if it means that an offender owes a\npenalty, that is, that he may be punished without injustice, it will\nnot necessarily follow that the person who does not punish him, is\ndoing what he ought not to do. But if the word be taken to imply that\na good man, or a wise man, ought at all events, to exact the penalty,\nit may be observed in reply that THIS does not always happen, and\ntherefore, in this sense, the penalty or punishment may be considered,\nnot as a debt, but only a permission. And this will hold good, both\nbefore and after the establishment of penal laws.\n\nXXII. Before the establishment of penal laws, punishment, beyond\nall doubt, might be inflicted; because by the law of nature, every\noffender made himself subject to punishment; but it is not a natural\nand inevitable consequence of its being lawful, that it should be\nenforced. For this depends upon the connection between the ends, for\nwhich punishments were established, and the punishments themselves. If\nthe ends proposed therefore are not immediately necessary, in a moral\npoint of view, or if other ends of a different kind, but not less wise\nand salutary should be devised, or that the ends originally designed\nmay be obtained by some other means, in all these cases, the right of\npunishment may be saved, there being no immediate occasion to inflict\nit. Thus for instance, where an offence is known to very few, there can\nbe no immediate occasion for a public punishment, by way of exemplary\nexposure, which in some cases might be even injurious to society rather\nthan productive of advantage. Upon which Cicero in a letter to his\nbrother makes a pertinent remark, respecting one Zeuxis, observing,\nthat \"had he once been brought into court, he could not have been\nreleased, but there was no necessity that a search should be made for\nhim, in order to bring him to trial.\"--In the next place the right and\nend of punishment may be dispensed with, where a man's own services, or\nthose of his family are sufficient to outweigh the consideration of his\noffences. \"For, _in the words of Seneca_, an act of kindness eclipses\nthe fault of an injury.\"--And in the last place, where reproof operates\nupon an offender, as a means of correction and amendment, or where the\ninjured party is satisfied with an acknowledgment of the offence, the\noccasion for punishment is done away. It was this motive to clemency,\nwhich the son of David had in view, where he observes that it behoves\nthe righteous to be merciful. For as all punishment, especially of the\nmore severe cast, has in it some thing, which tho' not repugnant to\njustice, is at variance, at least, with charity, reason easily suffers\nus to forbear inflicting it, unless that forbearance is opposed by some\nweightier, juster, and more undeniable motive of charity.\n\nXXIII. Cases may occur where it is absolutely necessary to inflict\npunishment, as upon notorious, and atrocious criminals, or where it\nis for the public good, to dispense with that severity, or where\nthe judicial authorities may use their own discretion in mitigating\nor enforcing the sentence of the law. Upon which Seneca pertinently\nremarks, that the exercise of lenity should always be an act of free\ndeliberation. As to the disputes of the Stoics on these points, they\nare, in the opinion of Cicero and others, debates upon words rather\nthan things: consequently they are less worthy of philosophical\ncontemplation.\n\nXXIV. There seems to be a greater difficulty in deciding what is to\nbe done, subsequently to the establishment of penal laws; because a\nlegislator is bound, in some measure, by his own laws. But this, as it\nwas proved in a former part of this treatise, is only true with respect\nto the legislator, in his individual capacity, as a private member of\nthe state, but not in his public character, in which he represents\nthe whole Majesty and Authority of the state itself. As such, he can\nentirely repeal the law: for it is the nature of all human laws, to\ndepend upon the will of the maker, not only for their origin, but also\nfor their duration. Yet a lawgiver ought not, upon trivial grounds, to\nrepeal a statute, for, in so doing he would be acting against the rules\nof sovereign justice. But as the legislator has power to repeal the\nwhole of a law, so in the case of some particular person, or individual\naction, he may relax its rigour, allowing it to remain in other\nrespects, as it stood before. As an example of this, the actions of\nthe Deity may be cited, who, according to the testimony of Lactantius,\nin enacting his laws, did not deprive himself of the exercise of his\nmercy, to grant pardons. \"The Emperor, _says Augustin_, may recall\nhis sentence, pardon and release a criminal; because, _as he further\nexplains it_, the person who has power to make laws, is not INVARIABLY\nbound to observe them.\" Yet this privilege of departing from the letter\nmust never be used but for the most important reasons. Although such\nreasons cannot be precisely defined, yet it is certain that, since the\nestablishment of civil law, more weighty ones are required to authorise\nsuch pardons, than before that period. Because punishments have derived\nan additional sanction from the authority of the law, which ought to be\nrespected and observed.\n\nXXV. The reasons for releasing any one from the penalties of the law,\nare of two kinds, either internal or external.\n\nAn internal reason, to justify a departure from the sentence of the\nlaw, must be one, where the punishment is severe when compared with the\noffence.\n\nXXVI. An external reason is one arising from some favourable\ncircumstance in the character of the offender, or some fair hopes that\nmay be entertained of his future conduct. And these reasons will have\nthe most weight in cases, where the particular motives for making the\nlaw cease to operate. For although a general reason, unopposed by any\nother of a weightier kind, may sufficiently authorise the enaction of\na law; yet where the peculiar reason, for which that law was made, has\nceased to exist, the relaxation of it, or even a total dispensation\nwill be attended with less danger to the universal authority of law in\ngeneral.\n\nSuch a dispensation indeed is most allowable, where an offence has been\ncommitted through ignorance, though the party so committing it is not\nentirely free from blame, or through some invincible infirmity of mind,\nin all which cases, a Christian ruler will have an eye to the example\nof God, who, under the old covenant, appointed many such offences\nto be atoned for by certain expiatory offerings: Levit. iv. and v.:\nand, in the New Testament, he has expressly declared his intention to\npardon such offences, upon due repentance. Luke xxiii. 34.; Heb. iv.\n15. and v. 2.; 1 Tim. 1. 13. And Chrysostom observes, that Theodosius,\nimpressed with those words of our Saviour, \"Father, forgive them, for\nthey know not what they do,\" was led to grant a pardon to the people of\nAntioch.\n\nXXVII. And hence it is evident, how mistaken Ferdinand Vasquez is\nin his judgment, when he maintains that there can be no just reason\nfor dispensing with a law, that is, for releasing any one from\nits obligations, except where the lawgiver, upon being consulted,\nexpressly declares that he never intended it should be observed to\nits full extent. For he does not make the proper distinction between\nan equitable interpretation, and the entire relaxation of a law. For\nwhich reason, in another place, he reproves Thomas, and Sotus, because\nthey say that a law is binding although the particular reason of its\nbeing made may have ceased, as if they supposed that the mere letter of\nthe law was the source of its obligation, an opinion which they never\ndid entertain. So far from every relaxation coming under the idea of\nequity, properly so called; those relaxations may be freely granted\nor refused, which could not be done in matters of equity, to which\neven acts of charity or those of reasonable policy do not strictly\nbelong. For there is a great difference between the repeal of a law\nupon fair or urgent grounds, and a legislator's declaring that at the\ntime of passing the law he had not the particular offence or case in\ncontemplation.\n\nHaving thus far considered the nature of dispensations, we proceed to a\nreview of the merits upon which they may be granted.\n\nXXVIII. From what has been said above, it appears that in punishments,\ntwo things are to be regarded, the offence, and the object for which\nthey are inflicted. It is consonant to justice that no one should\nreceive greater punishment than he deserves; upon which Cicero, in\none of his letters, observes, that, \"the same moderation, which is\ncommended in all other things, ought to be observed in punishments.\"\nPapinian therefore calls punishment an estimation of demerit; but this\nequality established between crime and punishment, says Demosthenes in\nhis Letter in behalf of the children of Lycurgus, is not the only thing\nto be considered: the object and intention also of the delinquent must\nbe weighed and taken into the account. But, if care be taken to inflict\nno more punishment than is due for an offence; it may be greater or\nless, in proportion to the utility to be derived from thence.\n\nXXIX. In examining the different degrees of guilt, we ought to take\ninto the account the motives which impelled the offender to commit the\nact--the motives, which ought to have restrained him therefrom, and how\nfar he was capable of yielding to either. Scarce any one does a wicked\naction without some motive, or so far strips himself of the nature of\nman, as to delight in such acts from pure malignity. Most men are led\naway by the indulgence of their appetites, which engender sin. Under\nthe name of appetite also may be comprehended the strong desire of\navoiding evil, which is the most consonant to nature, and therefore to\nbe reckoned amongst the most laudable of all desires. So that offences\ncommitted for the sake of avoiding death, imprisonment, pain, or\nextreme want are generally deemed the most excusable.\n\nWhich gave occasion to Demosthenes to say, \"that we are justly more\nexasperated against those, who, abounding in riches, commit evil\nactions, than against those, who are impelled by want to do the same.\nHumane judges are always ready to make allowance for necessity: but\nwhere wealth is united with injustice, no pretext can be pleaded in\nexcuse.\" On this score, Polybius excuses the Acarnanians, for having\nneglected, when threatened with impending danger themselves, to fulfil\nthe terms of a defensive treaty made with the Greeks against the\nAetolians.\n\nBesides the desire of avoiding evil there are other desires tending\nto some good, either real or imaginary. Real advantages, considered\napart from virtues, and those actions, which have a virtuous tendency,\nare either such as give delight themselves, or, like abundance of\nriches, can procure those things, which administer to pleasure. Among\nadvantages purely imaginary, we may reckon that of desiring to excel\nothers, from a spirit of rivalry, rather than from any laudable\nintention, or the power of gratifying resentments, which the farther\nthey deviate from natural justice the more shocking they are to natural\nfeeling. These appetites the Apostle has described in terms of marked\ncensure, calling them, the \"lust of the flesh, the lust of the eye, the\npride of life.\" Here the first member of the sentence expresses the\nlove of pleasure, the second implies the insatiable love of riches,\nand the third comprehends the pursuit of vain glory, and the desire of\nrevenge.\n\nXXX. The very injustice of all offences ought to be a GENERAL motive\nwith men, to restrain them from the commission of them. For at present\nwe are not considering sins of any kind, but those, which extend\ntheir consequences beyond the offender himself, and affect others.\nAnd injustice is the more heinous and criminal in proportion to the\ngreatness of the injury, which it inflicts.\n\nIn the highest rank of crimes and misdemeanours therefore, we may\nplace those, which are carried into complete execution: and lower in\nthe scale we find those criminal designs, which have proceeded some\ndegrees, but not to the last stage of completion. For the aggravation\nof a criminal intent is measured by the length to which it goes. In\neither class that kind of injustice is most notorious, which tends to\ndisturb the common peace of society, and therefore is injurious to\ngreater numbers. Private wrongs follow in the next degree. The greatest\nof which are those affecting life, and very great, though somewhat\ninferior in the degrees of enormity, are those, that disturb the peace\nof families, which is founded on the marriage-contract. And the last\ndescription of wrongs are those affecting the property of individuals,\neither by taking it with open violence, or obtaining or injuring it by\nfraudulent means.\n\nSome are of opinion that a more accurate order of division might have\nbeen used; but that which is here followed is the same used by God\nhimself in the delivery of his commandments. For under the name of\nparents are included not only those, who are naturally such, but\nsovereign princes, magistrates, and rulers of every description, whose\nauthority is the key-stone of the fabric of society. Next follows the\nprohibition of murder; the prohibition of adultery, as a violation of\nthe marriage bond; the prohibition of theft, and false evidence: and\nthe catalogue of offences concludes with the prohibition of criminal\ndesires. Among the immediate causes to restrain the commission of a\ncrime, not only the cruelty of the act itself, but all the remote and\npossible consequences should be taken into the account. If a fire is\nbegun, or the barriers, that keep out the waves, are broken down, the\nperpetrator brings upon his own head the blood of thousands, and all\nthe guilt of that ruin by which they perish.\n\nIn addition to the general characters of injustice above described, we\nmay annex the crime of being undutiful to parents, unkind to relatives,\nor ungrateful to benefactors, which are each of them a violation of\nnatural, and in some respects of civil law. The repetition of these\noffences too aggravates their enormity: because wicked habits are\nsometimes worse than wicked actions. Hence we may comprehend the\nnatural justice of that rule, which the Persians followed, comparing\nthe past life of an offender with his present transgression. And this\nought to have some weight in cases where a crime does not originate\nfrom habit, but from a momentary occasion. But not so, where a course\nof former rectitude has been changed into an unvaried course of\nwickedness. For in such cases, God himself has declared by the mouth\nof his prophet Ezekiel, that he has no regard to the former life.\nEven profane writers have the same clear views upon the subject; for\nThucydides observes, that degeneracy from a righteous to a wicked\ncourse incurs double punishment: for offences are least pardonable in\nthose, who know the difference between right and wrong. In this respect\nall praise and admiration are due to the wisdom of the primitive\nChristians, who, in estimating the magnitude of offences, weighed\nthe preceding and the subsequent conduct of a transgressor against\nthe action, for which he was to be punished, as may be seen from the\ncouncil of Ancyra, and other councils. It heightens the enormity of an\noffence, where it is committed in violation of an express prohibition\nof the law. For, in the language of Tacitus, \"the fear of prohibition\nmay sometimes operate as a restraint, but where men once act in\ndefiance of that, fear and shame have lost all their force.\"\n\nXXXI. The capacity of the person too, with respect to judgment,\ndisposition, age, education, and every other circumstance must be taken\ninto consideration, when we look for resistance, or submission to the\nsuggestions of wicked inclinations. The thought of immediate danger\naugments fear, and recent, unallayed pain inflames anger; so that in\neither case the calm dictates of reason cannot be heard. Offences\ntherefore springing from the influence of such impressions, are of a\nless odious complexion than those arising from the love of pleasure,\nor the indulgence of hatred. Because there is less excuse for actions\nof the latter kind, the delay, or total forbearance of which could\noccasion no serious inconvenience. For it must always be kept in\nmind, that where there are more powerful impediments to the exercise\nof judgment, and more urgent persuasives to natural feeling, the\ncriminality of an offence is proportionably softened. And these are the\nrules for measuring the degrees of pardon or punishment.\n\nXXXII. The Pythagoreans maintain that justice lies in proportioning\nthe punishment to the offence: a rule which cannot be admitted to\nthe full extent of requiring an aggressor to suffer nothing more\nthan a bare requital of the injury he has occasioned. For this is at\nvariance with the most perfect laws, which in cases of theft sometimes\nrequire fourfold, and sometimes fivefold restitution to be made. And\nthe Athenian law, besides compelling a thief to pay double the value\nof what he had taken sentenced him to many days' imprisonment. Among\nthe Indians, as we are informed by Strabo, the person, who had maimed\nanother, was condemned, in addition to the penalty of retaliation, to\nlose his hand. Nor is it right, as Philo, in explaining the punishment\nof murder, justly observes, for the suffering of an innocent and guilty\nperson to be exactly the same. And hence it is easy to see why certain\ncrimes not carried into actual execution, and therefore less injurious\nthan those, which are so, are punished only proportionably to the\ndesign.--In this manner false witnesses were treated by the Jewish law;\nand by the Roman law, those who walked ready armed to commit murder.\nConsequently a greater degree of punishment is due, where the criminal\nintention is completed. But as death is the severest punishment that\ncan be inflicted, and one that can never be repeated; the sentence of\nall human law rests there: though by the custom of some countries death\nis accompanied with torture, in cases of extreme atrocity.\n\nXXXIII. In many instances, the magnitude of a punishment can only be\nmeasured by the situation of the person on whom it is to be inflicted.\nThus a fine imposed upon the poor would be a heavy sentence, though\nit would scarcely affect the rich; and a man of high rank would feel\nthe weight of a disgrace, that would but lightly touch an ignoble\nperson. Such distinctions are frequently used by the Roman law, often\ndegenerating into acts of partiality; a fault from which the law of\nMoses is entirely free. And the above rules may be considered as the\nscale for estimating the different degrees of punishment.\n\nXXXIV. Though punishment does not exceed the bounds of justice, yet in\ncertain cases it may be mitigated in favour of a criminal, from motives\nof mercy, except where such lenity to the guilty is deemed cruelty to\nthe innocent, whose safety is thereby endangered. For the escape of a\ncriminal is often an encouragement to his own perseverance in iniquity,\nand to that of others, who are encouraged by the example. Necessity\nindeed requires the sharpest remedies for the suppression of crimes;\nespecially, where the incentives of habit and a facility to commit them\nprevail.\n\nXXXV. The divine law given to the Hebrews punished the stealing of\ncattle from a pasture with more severity than breaking into a house,\non account of the ease with which the former of those crimes might\nbe committed. Exod. xxii. 1-9. Justin in speaking of the Scythians,\ndescribes them as \"punishing theft with more severity than any other\ncrime; for as they have no covered habitations to protect their flocks,\nand herds from depredations, what could be safe, if thieving were\nallowed?\" Though the FAMILIARITY of certain crimes may prevent us from\nbeing surprised at their perpetration, it by no means diminishes their\natrocity, or demands a mitigation of punishment. But, as Saturninus\nsays, \"the giant-strides of crimes must be impeded with the strongest\nbands.\" In trials for offences, clemency may be indulged, but in the\npassing of laws severity should be regarded: For the GENERAL nature\nof law requires that offences should be pursued with rigour: but in\ntrials, in which individuals are the objects concerned, there may be\ncircumstances to aggravate or diminish the offence: which leaves room\nfor the discretionary exercise of rigour or lenity.\n\nXXXVI. and XXXVII. The inclination to mitigate penalties, where\nthe urgent motives to enforce them no longer exist, is a point of\ncompassion perfectly distinct from the abolition of punishment\naltogether.\n\nNor has any thing been omitted, that might tend to clear up this\ndifficult and delicate question. But every point, we trust, has been\nexamined in its proper place, either respecting the magnitude of\ncrimes, as measured by the injury done, the habitual commission of such\noffences, or the influence of the motives, sufficient to encourage or\nrestrain them. Indeed the character of the offender affords the most\nconclusive means for judging of his capacity to commit the crime; and\nthat of the sufferer often contributes something towards enabling us\nto estimate the due proportion of the penalty. The circumstances of\nthe time, when--the place, where--or the facility, with which a crime\nis perpetrated, tend to aggravate, or lessen its enormity. The length\nof time intervening between a criminal design and its execution gives\nus some opportunity to examine how far the perpetrator was actuated\nby a malicious purpose. But the true complexion of a crime is to be\ndiscovered, partly from the nature of those appetites, to which it\nowes its birth; and partly, on the other hand, from the nature of the\nmotives which ought to have restrained them. By this class of appetites\nthe magnitude of a crime may be judged of; and the consequences are the\nmotives which should operate to restrain them.\n\nXXXVIII. It has been shewn before, and it is a truth founded upon\nhistorical fact, that wars are undertaken, as acts of punishment, and\nthis motive, added to that of redress for injuries, is the source, from\nwhich the duties of nations, relating to war, take their rise. But it\nis not every injury, that can be construed into a just ground of war.\nFor laws, whose vengeance is meant to protect the innocent, and to fall\nupon the guilty, do not regard every case, as a sufficient warrant for\ntheir exertion. So that there is much truth in the opinion of Sopater,\nwho says that there are trivial and common offences, which it is better\nto pass over unnoticed, than to punish.\n\nXXXIX. The maxim laid down by Cato, in his speech in defence of the\nRhodians, that it is not right any one should be punished upon the\nbare suspicion of his having intended to commit aggression or injury,\nwas well applied in that place; because no positive decree of the\npeople of Rhodes could be alleged against them, nor was there any other\nproof beyond the CONJECTURE of their wavering in their policy. But this\nmaxim is not universally true.\n\nFor where intention has proceeded to any outward and visible signs of\ninsatiable ambition and injustice, it is deemed a proper object of\njealousy, and even of punishment. Upon this principle, the Romans, as\nmay be seen from Livy's account in the xlii. book and xxx. chapter of\nhis history, thought themselves justified in declaring war against\nPerseus, King of Macedon, unless he gave satisfactory proof, that he\nhad no hostile intentions against them, in the naval and military\narmaments, which he was preparing. And we are informed by the same\nhistorians, that the Rhodians urged it as a rule established by the\nlaws and customs of all civilized states; that if any one wished the\ndestruction of an enemy, he could not punish him with death, unless he\nhad actually done something to deserve it.\n\nBut it is not every unjust design, though indicated by some outward\nact, which can authorize and direct hostilities. For if the actual\ncommission of crimes and aggressions is, in some cases, proper to be\noverlooked, much more will it be a mark of deliberate caution to use\nthe same forbearance, where nothing further than the pure design of\naggression appears. A forbearance which Cicero justifies upon the\npossibility that the enemy may have repented of his design, before the\nexecution of it. No conclusive inference can be drawn from the severity\nof Mosaic Law against all intended acts of impiety and murder. For, in\ncomparing human laws with the divine counsels, whose depths we cannot\nsound, we are liable to run into error; and the impulse of anger,\nwhere it is attended with no fatal consequence, is a case in which the\ninfirmity of human nature calls for pardon. For altho' the precepts of\nthe decalogue are designed to lay a restraint upon unlawful desires\nas well as upon unlawful actions, yet in addition to the spiritual\nsense, that which is called the carnal, or external commandment applies\nto those dispositions that are manifested by some open act. This\ninterpretation may be deduced from a passage in the gospel of St. Mark,\nc. x. 19, where the prohibition to defraud is immediately preceded by\nthe injunction not to steal. So that intended aggressions are not to be\npunished by force of arms, except in cases of atrocity, where the very\ndesign threatens consequences of the greatest danger. All punishment\ntherefore must have in view either security against future aggressions,\nreparation for the injury done to national or private honour, or it\nmust be used as an example of awful severity.\n\nXL. It is proper also to observe that kings and those who are possessed\nof sovereign power have a right to exact punishment not only for\ninjuries affecting immediately themselves or their own subjects, but\nfor gross violations of the law of nature and of nations, done to other\nstates and subjects. For the liberty of inflicting punishment for the\npeace and welfare of society, which belonged to individuals in the\nearly ages of the world, was converted into the judicial authority of\nsovereign states and princes; a right devolving upon them not only\nas rulers of others, but as subject to the controul of no earthly\npower. For that is a right, which can belong to no subject. It is\nnever safe to leave the entire assertion of a man's own rights, or\nthe punishment of his wrongs, to his own judgment; for he cannot be\nentirely disinterested in his own cause. Partiality will make him fall\nshort of, or prejudice will make him exceed the bounds of justice. It\nwas the theme of praise bestowed upon the heroes of antiquity, that\nin their most arduous undertakings they avenged the wrongs of others\nrather than their own. Upon this principle there can be no hesitation\nin pronouncing all wars to be just, that are made upon pirates, general\nrobbers, and enemies of the human race. So far this opinion agrees\nwith that of Innocentius and others, who maintain all war to be lawful\nagainst those who have renounced the ties and law of nature. An opinion\ndirectly the reverse is held by Victoria, Vasquez, Azorius, Molina,\nand others, who deem an aggression done to a prince, his government,\nor his subjects, or civil jurisdiction over the aggressor, the only\njustifiable warrant for inflicting punishment, particularly the\npunishment of hostilities. For they suppose punishment to be an effect\npurely arising from the authority of civil law, whereas, according to\nthe proofs established in the beginning of this treatise, it was shewn\nto be a right resulting entirely from the law of nature.\n\nIf the opinion of those, from whom we differ, be admitted, no enemy\nwill have a right to punish another, by the prosecution of a just war;\na right, which notwithstanding is allowed and confirmed by the practice\nof all nations, not only after the defeat of an enemy, but during the\ncontinuance of a war; and that too, not from any civil jurisdiction,\nbut from a natural right, which prevailed long before the foundation of\nstates, and which still exists in all its force, in places, where the\ncommunity consists of families distinct, and united as the subjects of\none sovereign.\n\nXLI., XLII., XLIII. But certain precautions are necessary to prevent\nus from being carried away by an opinion that civil customs, though\nfounded upon just reasons, and received among many nations, are to be\nreckoned as a part of the law of nature. And in the next place, it is\nnecessary to guard against enumerating as prohibitions of natural law,\nthings which are not proved to be so, as certain kinds of marriages the\ntaking of interest for the use of money, and other positive injunctions\nof the divine, or Mosaic law. The third rule is, to make an accurate\ndistinction between general principles, such as the duty of living\naccording to the dictates of reason, and those of a more particular\nthough not less obvious meaning; as the duty of forbearing to take what\nbelongs to another. To which many truths may be added though not quite\nso easy of apprehension: among which may be named the cruelty of that\nkind of punishment, which consists in revenge, delighting in the pain\nof another. This is a method of proof similar to that which occurs in\nmathematics, the process of which rises from self-evident truths to\ndemonstrations, the latter of which, though not intelligible to all\nalike, upon due examination obtain assent.\n\nAs then in matters of civil law, ignorance is deemed an excuse, so with\nrespect to the law of nature, wherever infirmity of understanding forms\nan invincible obstruction to the knowledge of its rules, such infirmity\nmay be alleged as a vindication. For as, in cases of unavoidable\nignorance a great degree of the guilt of sin is removed; so it is in\nsome measure softened wherever this ignorance subsists, though it may\nbe owing to former negligence. And for this reason, Aristotle compares\nbarbarians, in their rude, unformed state, to persons, whose appetites\nare rendered sickly by disease. Plutarch also observes that there are\ncertain infirmities and disorders, which naturally infect the soul.\nOnce for all, by way of conclusion we may add that wars undertaken\nto inflict punishment may be suspected of injustice, except there be\nmanifest and enormous aggressions, with other conspiring causes, to\nvindicate nations for having recourse to arms.\n\nXLIV. The progress of the work has necessarily led to the consideration\nof offences against God; the propriety or impropriety of punishing\nwhich by force of arms is a fit subject of inquiry.\n\nAdmitting the affirmative part of the question, we may observe that as\nin ecclesiastical affairs Bishops are intrusted with a Catholic, or\ngeneral power; so kings, besides the care of their own immediate states\nand subjects, may be regarded as protectors of the human race. The best\nargument, on the negative side of the question, against the justice of\nsuch wars, is the sufficiency of the divine omnipotence to avenge its\nown wrongs. Yet the same may be said of other offences. For the Deity\npossesses sufficient power to punish them, although he leaves them\nto the sentence of human tribunals. Some will urge and maintain that\nother kinds of offences are punished only in cases, where others are\nuninjured or endangered by the commission of them. On the other hand,\nit may be said that men punish not only offences, which directly hurt\nothers, but even those, which affect them indirectly, as suicide and\nother similar crimes.\n\nAlthough religion is a concern between the soul of man and his\nMaker alone, its influence on human morals is of no inconsiderable\nimportance. So that Plato had reason to call it the bulwark of\nauthority and law, and the bond of every thing venerable in social\norder and discipline. Every false opinion in divine things, says\nPlutarch, is pernicious, betraying itself in the disorders of the\nimagination, wherever it takes root, and springs up into action. So\nthat Aristotle reckons the care and support of religion the first of\npublic concerns. This is a truth applying not to any particular state,\nbut to all governments, and to human society in every shape. An avowal\nwhich Xenophon makes the characteristic of a great and wise prince,\nattributing to Cyrus a declaration of his firm persuasion that the more\nhis subjects feared God, the more obedient he should find them to his\nlaws, and the more attached to his person. But once remove the motives\nof religion, says Tully, and you destroy faith, the intercourse\nbetween man and man, and justice the most excellent of all virtues.\n\nThe opinions of Epicurus afford a sufficient proof of this: for in\nbanishing the providence of God from his system, he made justice\nnothing but an empty name, springing from human conventions, founded on\nself-interest, and restraining men from the commission of crimes by no\nother principle but that of fear.\n\nBut there is a wider sphere, than the internal welfare of independent\nstates, on which religion operates. In the separate society, which\nevery kingdom, state, or country forms within itself, the place of\nreligion may occasionally be supplied by the influence and execution\nof municipal laws. But in all the transactions of the great community\nat large, where civil laws are silent, and tribunals give way to the\ndecision of the sword, the law of nature and of nations, founded upon\nthe fear of God, and obedience to his will, is the standard of right\nto which Kings and Sovereign states appeal; a violation of which is\nregarded as a violation of the divine law.\n\nXLV. But to take a closer view of the subject, we must observe that\ntrue religion, which is the same at all periods of time, rests upon\nfour evident and universally acknowledged truths. The first of which\nis the being and unity of God,--the second, that God is not any of\nthe things, that can be seen, but of a nature too sublime to be the\nobject of human conception, or of human sight,--the third is, that with\nthe eye of his providence he regards the events of this world, and\nregulates them with the most equitable and unerring judgments,--the\nfourth is, that he is the creator of all things, except himself. And\nthese four truths are unfolded and laid down in an equal number of\ncommandments, the first of which plainly declares the unity of God--the\nsecond forbids any representation, by painting or image, to be made of\nthat being, who is invisible to mortal eye. Tacitus bears testimony to\nthe spiritual nature of the Jewish religion: for he says, that \"the\nJews have nothing but a mental conception of one God, and they look\nupon every attempt to represent him under the appearance of human form,\nas a profanation of his heavenly nature.\"--From the third commandment\nwe deduce his knowledge of all human transactions, even of our very\nthoughts; an omniscience upon which the obligation and sanctity of\noaths is founded. For God is a witness even of the secret designs\nof the heart, so that every solemn oath is an appeal to his justice\nand his power, for the vindication of truth, and the punishment of\nfalsehood.--The fourth commandment presents us with an account of the\ncreation of the world, to commemorate which God appointed the sabbath,\ncommanding it to be observed with a degree of reverence above every\nother sacred institution. For the violation of any other rites, such\nas those respecting forbidden meats, was left to the discretionary\npunishment of the law: but offences against the sabbath were capital;\nbecause, considering the nature and design of its origin, such contempt\nimplied a disbelief, that the world was created by God. Now the\ncreation of the world by God affords a tacit proof of his goodness,\nwisdom, eternity and power: and the effect of this contemplative\nknowledge is the offering of honour, love, worship and obedience to\nGod. So that Aristotle says that the man, who denies that God ought to\nbe honoured, or parents loved, should be taught to renounce his error,\nnot by reasoning, but by punishment. And, in another place, he observes\nthat some actions are proper on certain occasions, but reverence for\nthe majesty of God is requisite at all times, and in all places.\n\nThe truth of those contemplative opinions may undoubtedly be proved\nfrom the nature of things; the clearest of which proofs is the evidence\nof sense, shewing the existence of things, which naturally leads us to\nconsider the time, when they had no being.\n\nBut as all are not able to understand these arguments and others of\nthe same kind, it is sufficient to observe that in all ages and all\ncountries of the world, with very few exceptions, these opinions have\nfound a general reception with those who were too plain in their\ndealings, and ingenuous in their designs, to impose upon others, and\nwith many, who had too much sagacity to be deceived themselves. But\nwhen amid such variety of laws, customs, and opinions, there is so\ngeneral an agreement upon one point; that agreement may be adduced as\na proof, that such a belief owes its origin to the primitive ages of\nthe world, from whence it has been derived to us: when we consider too\nthat it has never been clearly refuted, it is a sufficient reason to\nestablish our faith.\n\nXLVI. There is no excuse therefore for the rejection of those opinions,\neven in cases, where there is no intuitive sagacity to discover new\nproofs, or to comprehend old ones: as there are so many guides both in\nnature and reason to lead men to the knowledge of those truths, and\nas no solid arguments have ever been produced to establish a contrary\nbelief. But as human punishments form the subject of our present\ninquiry, it is right to make a distinction between opinions themselves,\nand the manner of deviating from them. The belief in a supreme being,\nand in the controul of his providence over human affairs, is one of\nthose universal tenets to be found in all religions, whether true or\nfalse. And in reality to deny the being of a God, and to deny the\ninterposal of his providence in human affairs, amounts in its moral\nconsequences to the same thing. And it is for this reason these two\nopinions have been inseparably united in all ages, and among every\ncivilized people. Consequently we find, that in all well governed\nstates, wholesome laws have been enacted to restrain those, who disturb\nthose opinions, which have always been regarded as the chief support\nof social order; and all contempt, shewn to those opinions, has\nalways been considered as contempt shewn to society itself, which it\nconsequently has a right to punish.\n\nXLVII. There are other truths not equally self-evident, such as these,\nthat there are not more Gods than one; that no visible thing, neither\nthe world, nor the heavens, nor the sun, nor the air is God; that the\nworld, and the matter of which it is formed, have not existed from\nall eternity, but were made by God. So that we see the knowledge of\nthese truths disfigured, and almost entirely obliterated among many\nnations by the lapse of time. And this might the more easily happen,\nas there were no legal provisions made to preserve the purity of\nthese truths, which were not considered as essential to the very\nexistence of all religion. The law indeed given to that people, who\nwere instructed in the clear knowledge of these truths, by the mouths\nof the prophets, by miracles seen with their own eyes, or brought to\ntheir ears by the reports of the most undoubted testimony, that law,\nthough it expresses the greatest abhorrence of the worship of false\ngods, does not inflict the punishment of death upon all convicted of\nthat crime, but only in particular instances, where they have seduced\nothers into idolatry,--or where a state has introduced the worship\nof unknown Gods,--or where the true worship of God, and obedience to\nhis laws have been forsaken for the worship of the stars, which St.\nPaul calls serving the creature above the creator, an offence, which\nwas, for some time, punished among the descendants of Esau. Those\ntoo who offered their children to Moloch, that is, to Saturn, were\npunished with death. Yet the Canaanites, and the neighbouring nations,\nwho had long been sunk into the most depraved superstitions, were not\nconsigned by God to immediate punishment, but were left to fill up the\nmeasure of their crimes. And there were other nations, where, in the\nlanguage of Scripture, God winked at the times of this ignorance. Where\nmen have had no means of arriving at the knowledge of a true God, as\ntheir superstitions and errors are excusable, so where, in despite of\nknowledge, they have deified Daemons, and vices, which they knew to be\nsuch, their superstitions are not to be called errors, but impieties.\nAnd no less impious is the supposed homage, that is paid to God with\nthe blood of innocent human victims, and Darius king of the Persians,\nand Gelo king of Syracuse, are commended for abstaining from such\npractices. Plutarch informs us of some barbarians, who would have been\npunished by the Romans for offering human victims to the deity, had\nthey not pleaded the antiquity of the custom, which was admitted as\nan excuse, though they were strictly enjoined not to follow the same\ncustom in future.\n\nXLVIII. From the kind of evidence on which Christianity rests, it\nis plain that no force should be used with nations to promote its\nacceptance. It is not merely by natural arguments it can gain assent;\nfor it has made an addition of many things to natural religion. Its\nevidence rests upon the history of Christ's resurrection, and upon\nthe miracles performed by himself and his Apostles. So that it is a\nmatter of fact proved by the most undeniable evidence, and of great\nantiquity. Therefore a doctrine of this kind cannot be thoroughly\nreceived upon the first hearing of it, without the secret assistance\nof God: an assistance not given as a reward for the merit of works; so\nthat wherever it is withheld or less copiously bestowed; it is done for\nreasons, which though just, are generally unknown to us, and therefore\nnot punishable by human judgments. For it is the custom in the sacred\nwritings to assign the divine pleasure as the cause of things unknown\nto us.\n\nThere is another reason of no less weight, which is that Christ\nbeing the author of a new law, will have no one brought to embrace\nhis doctrine by the fear of human punishments. Nor is the reason\nat all weakened by the objection drawn from the parable of the\nmarriage-supper, where it is said the messengers are commanded to\ncompel the guests to come in. For the term, COMPEL, here signifies\nnothing more than an earnest entreaty, a sense, in which it is used in\nother parts of the New Testament, implying an earnest request made to\nany one.\n\nXLIX. But to obstruct the teachers of Christianity by pains and\npenalties is undoubtedly contrary to natural law and reason: for\nthe doctrine of Christ, apart from all the corruptions added by the\ninventions of men, contains nothing hurtful, but every thing beneficial\nto society. The thing speaks for itself, and even those who were\nstrangers to the doctrine itself were obliged to acknowledge the truth\nof this. Pliny says that the Christians bound themselves by an oath to\ncommit neither theft, nor robbery, nor to violate their word. It was a\ncommon saying \"Caius Seius is a good man, but he is a Christian.\"\n\nNor indeed can any danger be apprehended from the spreading of\ndoctrines, calculated to inspire greater sanctity of manners, and the\npurest principles of obedience to lawful sovereigns. Philo has recorded\na beautiful saying of Augustus, who observed that the assemblies of the\nJews were not Bacchanalian revels, or meetings to disturb the public\npeace, but schools of virtue.\n\nL. It seems unjust to persecute with punishments those who receive\nthe law of Christ as true, but entertain doubts or errors on some\nexternal points, taking them in an ambiguous meaning or different from\nthe ancient Christians in their explanation of them. A point which is\nproved by what has been said above, and by the ancient example of the\nJews. For, possessing a law, which allowed them to inflict temporal\npunishments, they never exercised that authority upon the Sadducees,\nwho denied the doctrine of a resurrection: a doctrine of the greatest\ntruth, though but faintly delivered in that law, and under a typical\napplication of words and circumstances.\n\nBut if there should be any weighty error, that discerning judges could\neasily refute by an appeal to sacred authority, or to the opinions\nof antiquity; here too it would be necessary to make allowance for\ningrafted opinions, that have grown up to form an inseparable part of\nthe human mind, and for the zealous attachment of every one to his own\ntenets; an evil which Galen says is more difficult to be eradicated\nthan any constitutional disease.\n\n\n\n\nCHAPTER XXI.\n\nON THE COMMUNICATION OF PUNISHMENT.\n\n How accessories are liable to punishment--Sovereign Princes or\n States answerable for the misconduct of their subjects, when they\n know it, and do not endeavour to prevent it--Sovereigns bound not\n to protect offending subjects, but to deliver them up or punish\n them--The rights of suppliants belong to the unfortunate and not\n to the guilty--Suppliants may be protected while the inquiry\n into their case is still pending--How far states are amenable to\n punishment--All the different exceptions stated--Children not\n answerable for the offences of parents--The moral government of\n God in this respect considered--Individuals not answerable for\n offences, to which they have not given consent--Heirs, how far\n answerable for the acts of their ancestors.\n\n\nI. The next topic of inquiry relates to the communication of\npunishment, as inflicted upon accomplices, who, in that capacity,\ncannot be said to be punished for the guilt of others, but for their\nown. And from what has been said above upon the loss sustained from\ninjury, it may be understood who are the persons, that come under this\ndescription. For the partnership in loss, and the partnership in guilt\nare regulated by nearly the same principles. Yet the obligation to\nrepair a loss does not always imply guilt, except where there has been\nany notorious malice, in which case every damage renders the party,\nwho has occasioned it, liable to make reparation. So that persons\nordering the commission of any wicked or hostile act, giving the\nrequisite consent to it, supplying the aggressor with assistance, or\nprotection, or, in any other shape, partaking of the crime, by giving\ncounsel, commendation, or assent to his act, or when they have power to\nforbid the commission of such an act, by forbearing to exercise their\nauthority, or by refusing to afford the succour, which they are bound\nby the law of nature, or by treaty to give to the injured party, by not\nusing with the offender that power of dissuasion, which they have a\nright to do, or lastly by concealing what they ought to make known, in\nall these cases, such persons are punishable as accomplices, if they\nare convicted of that degree of malice, which constitutes a crime, and\nmerits punishment: points which have before been discussed.\n\nII. The case will be made clearer by examples. A civil community is\nno more bound than any other society by an act of individual members,\nexcept that act be done by its express consent and authority, or it has\nneglected to disavow such a proceeding. Hence it is formally stipulated\nin almost all treaties that no acts or aggressions are to be ascribed\nto a state, except those, which are done in the name of the sovereign,\nand by persons acting expressly under the authority of his commission.\nSo a father is not answerable for the misconduct of his children, a\nmaster for that of his servants, nor a ruler for the acts of those\nunder him, unless there appears in any of these some connivance, or\nencouragement in promoting that misconduct, or those acts.\n\nIn the case of a sovereign's responsibility for the acts of his\nsubjects, there are two things to be considered, which require minute\ninquiry, and mature deliberation, and those are the forbearance,\nand the encouragement or protection, which he has shewn to their\ntransgressions.\n\nAs to forbearance, it is an acknowledged point, that when he knows of\na delinquency, which he neither forbids nor punishes, when he is both\nable and bound to do so, he becomes an accessory to the guilt thereof.\nCicero, in his speech against Piso, says, \"it makes no great difference\nespecially in a consul, whether he harasses the government by moving\nruinous laws, and making mischievous speeches, or suffers others to do\nthe same. If a slave has committed a murder with the knowledge of his\nmaster, the master becomes answerable for the entire deed, as it was\ndone with his concurrence.\"\n\nBut, as we have said before, besides the knowledge of a deed, to\nconstitute a participation in the guilt, the person so knowing it,\nmust possess the power to prevent it. And this is what is meant by the\nlegal phrase, that the knowledge of a crime, when it is ordered to\nbe punished, is taken in the sense of forbearance or connivance, and\nit is supposed that the person, who ought to have prevented it, did\nnot do so. In this place knowledge implies a concurrence of will, and\nconnivance a concurrence of design. A master therefore is not bound by\nthe act of a slave, who has claimed his freedom, and done any thing in\ndespite of his master, because the knowledge of a crime without ability\nto prevent it, by disclosure or some other means, cannot be construed\ninto an act of guilt. So parents are bound by the acts of children; but\nonly in cases where they have the children under their authority. On\nthe other hand, altho' by having them in their power, they might have\nprevented their misconduct, they will not be answerable for it, unless\nthey had a knowledge of it also. For there ought to be a concurrence\nof knowledge, and forbearance or encouragement to involve any one in\nthe guilt of another's actions; circumstances all of which by a parity\nof reasoning may be applied to the connection between sovereigns and\nsubjects: a connection founded on principles both of natural and civil\nlaw.\n\nIII. The matter that necessarily comes next under consideration\nis the case of those, who screen delinquents from punishment. It\nwas before observed that, according to the law of nature, no one\ncould inflict punishment, but a person entirely free from the guilt\nof the crime which he was going to punish. But since established\ngovernments were formed, it has been a settled rule, to leave the\noffences of individuals, which affect their own community, to those\nstates themselves, or to their rulers, to punish or pardon them at\ntheir discretion. But they have not the same plenary authority, or\ndiscretion, respecting offences, which affect society at large, and\nwhich other independent states or their rulers have a right to punish,\nin the same manner, as in every country popular actions are allowed for\ncertain misdemeanors. Much less is any state at liberty to pass over\nin any of its subjects crimes affecting other independent states or\nsovereigns. On which account any sovereign state or prince has a right\nto require another power to punish any of its subjects offending in the\nabove named respect: a right essential to the dignity and security of\nall governments.\n\nIV. But as it is not usual for one state to allow the armed force\nof another to enter her territories under the pretext of inflicting\npunishment upon an offender, it is necessary that the power, in\nwhose kingdom an offender resides, should upon the complaint of the\naggrieved party, either punish him itself, or deliver him up to the\ndiscretion of that party. Innumerable instances of such demands to\ndeliver up offenders occur both in sacred and profane history. Thus\nthe other Israelites required the Benjamites to deliver up offenders,\nJud. xx.--And the Philistines demanded of the Hebrews the surrender of\nSamson, as a criminal, Jud. xv.--In the same manner the Gauls made a\ndemand that the Fabii should be surrendered for having fought against\nthem. Sylla too, as Sallust informs us, urged Bocchus to deliver\nup Jugurtha, and by so doing to relieve the Romans from the bitter\nnecessity of implicating HIM for his erroneous conduct in the same\nguilt with that most desperate villain. Yet all these instances are to\nbe understood not as strictly binding a people or Sovereign Prince to\nthe actual surrender of offenders, but allowing them the alternative of\neither punishing or delivering them up. For it was upon this ground,\nas we are informed, that the Eleans made war upon the Lacedaemonians,\nbecause the latter neglected to punish their subjects, who had\ncommitted aggressions upon that people; that is, they had neither\npunished nor delivered them up: for the obligation may be taken either\nway, that being left to the choice of the aggrieved person, or nation,\nin order to make the satisfaction the more complete.\n\nThe surrender here meant is nothing more than delivering up a citizen\nor subject to the power of another state to decide upon his punishment.\nBut this permission neither gives nor takes away any right, it only\nremoves an impediment to the prosecution of a right. Wherefore if that\nother people make no use of the permitted right, the offender, who\nhas been delivered up, is in such a situation, that he either MAY or\nmay NOT be punished: either of which may happen in the case of many\noffences. But the right of a state, as to the enjoyment of its own\nlaws, and many other advantages, is not lost by any particular act\nwithout a formal decree and judgment, unless in any way it has been\npreviously enacted, that certain acts, or certain omissions, shall\namount to a forfeiture of some particular rights and privileges. In\nthe same manner, goods, if surrendered, but not accepted, will remain\nthe property of the former owner. But if the surrender of a citizen\nhas been accepted, and, by some accident, the person so surrendered\nshall afterwards return home, he will no longer be a citizen, except\nby some new act of grace. What has been said of punishing or giving up\naggressors, applies not only to those, who always have been subjects\nof the sovereign, in whose dominions they are now found, but to those\nalso, who, after the commission of a crime, have fled to some place for\nrefuge.\n\nV. Nor do the so much talked of rights of suppliants, and the\ninviolable nature of asylums at all weaken the argument that has been\nadvanced. For the advantages of such protection are designed only for\nthose, who are the victims of unmerited persecution, not for those\nwho have committed crimes injurious to mankind, and destructive to\nsociety. Gylippus, the Lacedaemonian, as may be seen in the xiii. book\nof Diodorus Siculus, speaking of the rights of suppliants, says, that\nthey were originally introduced, as measures of compassion to the\nunfortunate, and not a screen for malicious and wanton offenders, who\nhave nothing but punishment to expect. And a little after he says, when\nsuch men, prompted by malice, or rapacity have plunged into evils, they\nhave no right to talk of misfortune or to wear the name of suppliants.\nFor that is a privilege granted by the laws of nature to the innocent,\nwho are beaten down by the hard and oppressive strokes of ill fortune.\nBut the refuge of compassion is withheld, where every line of a life\nhas been marked with cruelty and injustice. Thus according to that law,\nwhich partakes of the wisdom of its divine author, asylums were open\nto those who had killed any one by a weapon escaping from their hand:\nslaves too were allowed places of refuge, but deliberate murderers,\nor those, who had disturbed the peaceful order of the state, found no\nprotection even from the altar of God. Philo, in explaining this law\nsays, that even the temple affords no refuge to the impious.\n\nThe more ancient of the Greeks acted upon the same principle. It\nis said that the Chalcidians refused to deliver up Nauplius to the\nGrecians, and the reason alleged was his having cleared himself of\nthe charges made against him. There was among the Athenians an altar\ndedicated to Mercy; it is mentioned by Cicero, Pausanias, Servius, and\nalso by Theophilus, and it is described at full length by Statius in\nthe xii. book of his Thebais. The poet explains to what description of\nmen it afforded shelter: it was, he says, to those who were driven from\ntheir homes by the calamity of war, or stripped of their kingdoms by\nusurpers. Tacitus in the third book of his Annals, and 60th chapter,\nreprobates the custom, prevailing in his time among the cities of\nGreece, of making it an act of religion to protect offenders from the\npunishment due to their crimes. Such offenders therefore ought either\nto be punished, or delivered up, or, at least, ordered to withdraw.\nPerseus the Macedonian king, clearing himself to Martius from the\ncharge of screening those, who had attempted the life of Eumenes;\nsaid, \"as soon as I was apprised by you of their being in Macedonia, I\nordered immediate search to be made for them, peremptorily commanding\ntheir perpetual banishment from my kingdom.\"\n\nThe right of demanding the surrender or punishment of criminals that\nhave fled into other kingdoms, has, in most parts of Europe, during\nthe present, and the immediately preceding centuries, been generally\nexercised in cases, where the crimes were such as affected the safety\nof the state, or were attended with notorious atrocity. It has been\nusual to pass over, with mutual connivance, crimes of an inferior kind,\nexcept where it has been agreed to the contrary by express treaty. Nor\ncan it be concealed that where robbers and pirates have gained a truly\nformidable power, it has often been deemed an act of humane policy both\nin Sovereign Princes, and States to exercise forbearance towards them,\nrather than to drive them to greater acts of desperation by treating\nthem with all the rigour, which they deserve.\n\nVI. If the act, of which refugees and suppliants are accused, is not\nprohibited by the law of nature or of nations, the matter must be\ndecided by the civil law of the country, from which they come. This\nwas a received opinion in ancient times, as we find from the language\nof Aeschylus, in whose Tragedy of the Suppliants, the King of Argos,\naddressing a number of the daughters of Danaus, on their coming\nfrom Egypt, says, \"If the sons of Egypt exercise controul over you,\nmaintaining that they are authorised to do so by the law of the state,\nas being the nearest allied by blood, who can resist them? It is for\nyou to prove that, according to the laws of your country, they have no\nauthority over you.\"\n\nVII. and VIII. It has often been a celebrated topic of discussion,\nwhether a whole community can be punished for misconduct. And this is\nthe proper place for that inquiry.\n\nIt was shewn in a former part of this treatise, that a body politic\nthough it may seem to vary by a succession of new members, continues\nthe same, as long as it retains its form. In which case it seems liable\nto punishment no less than individuals. On the other hand bodies\npolitic seem to possess many privileges peculiar to themselves, such\nas having a common treasury, a common seal, laws, and other similar\nadvantages. But there are some distinctions, which they particularly\nderive from the INDIVIDUALS of which they are composed. Thus we say\nthat Universities are learned, or Garrisons brave, according to the\nnumber of learned or gallant men, which they respectively contain.\nMerit is a distinction of this kind, as being a gift of nature to\nindividuals, or an individual acquirement, which no public body,\nOF ITSELF, can have. So that upon the death or departure of those\nmeritorious individuals, the degree of merit, which any public society\nderived from their presence, must become extinct. In the same manner,\nthe debt of punishment which is considered as arising from some act of\ndemerit, must cease with the debt of the individual delinquents.\n\nArrian is justly commended for censuring the vengeance retorted upon\nthe Persians by Alexander, at a time, when those, who had committed\nthe original aggressions on the Greeks, had long been laid in their\ngraves. He passes a like sentence upon the burning of Persepolis, as\na retaliation for what the Persians had done at Athens. Such acts of\nretaliation, after a lapse of years, have been vindicated by some\nwriters, as an imitation of the slow, but unerring progress of divine\njustice. But we must remember that the ways of God are not as our ways,\nnor is the exercise of his justice to be measured by our counsels. For\nif descendents can claim no merit for the actions of their FOREFATHERS,\nneither is it right they should be punished for THEIR transgressions.\nThe consequences of merit indeed may be transmitted without injury, and\ntherefore without injustice; but it is not so with punishments.\n\nIX. Having thus shewn that a communication of punishment is necessarily\nconnected with a participation in guilt, it remains to consider\nwhether punishment can be extended to those, who are no way concerned\nin the crime. In order to understand this clearly, and to prevent the\nmistakes that may arise from a similarity of expression, where there\nis no similarity of facts, it will be necessary to make use of some\nprecautions.\n\nX. In the first place there is a difference between a loss DIRECTLY\noccasioned by any act, and one resulting but INDIRECTLY from it.\nNow it may be called a direct injury to deprive any one of what\npeculiarly belongs to him as his right. An indirect injury is that\nwhich prevents any one from possessing what he otherwise would have\ndone, by destroying the condition or means, which gave him such a\nright. As an example, Ulpian says, \"if any one has opened a well in\nhis own ground, by which the subterraneous streams of water, that\nwould have passed to the lands of another, are cut off, here no fault\nis imputable to the person who has only exercised his own right.\" And\nin another place, he says, it makes a great difference, whether any\none directly does an injury, or is only indirectly and unintentionally\ninstrumental in preventing another from reaping advantages, which he\nwould otherwise have enjoyed. And it is absurd, says Paulus, another\nlegal authority, for men to be called rich before they possess the\nmeans of being so. Thus when the property of parents is forfeited, it\nis felt as an inconvenience by their children; though it cannot be\nconsidered as a direct punishment inflicted upon them, because that\nproperty would never have been theirs, unless the parents had retained\nit to their last breath. On which Alphenus has made a just observation,\nin saying, that, by the punishment of the father, children lose that\nwhich would have come to them from him, but things, which they do not\nreceive from him, such as the gifts of nature, or those derived from\nany other quarter, remain untouched. Cicero relates that in this manner\nthe children of Themistocles were reduced to want, nor does he think\nit unjust that the children of Lepidus should share the same fate. And\nhe says that it is an ancient custom, and the received usage of all\nstates, the hardship of which nevertheless was greatly softened by the\nlaws of Rome at a later period. Thus when a whole people is implicated\nin the misconduct of the majority, which holds the representative\ncharacter of the state, and consequently loses its civil liberties,\nits fortifications, and other privileges, the loss affects innocent\nindividuals, but only in those things, which they could not have\nenjoyed, except as belonging to that community.\n\nXI. Besides, we must observe, that the offence of one man may sometimes\noccasion inconvenience or loss to another, and yet that offence may not\nbe considered as the immediate cause of the action, which is grounded\non the exercise of a right. This may be explained by an example. Thus\nif any one has engaged for another's debt, he brings himself into\nthe dilemma named in the ancient proverb, that being bound for any\none is the next stage to ruin; but it is a MAN'S OWN PROMISE, and\nNOT ANOTHER'S HAVING INCURRED A DEBT, that is the real cause of his\nobligation. For as a person, who has given security for a purchaser, is\nnot, properly speaking, bound by the PURCHASE, but by his own PROMISE:\nso if any one has engaged to be responsible for a delinquent, it is\nhis own ENGAGEMENT, and not the ACT OF THAT DELINQUENT, which creates\nhis obligation. And hence the inconvenience of that kind which any one\nincurs, must be measured not by the delinquency of another, but by his\nown power to enter into any such voluntary engagement. In consequence\nof which no one can give surety to suffer death for another; because no\none has such power over his own life, as to take it away himself, or\nto be bound to forfeit it for another. Though the ancient Greeks and\nRomans thought otherwise, and therefore they maintained that a surety\nmight be put to death for any one, as may be seen in the well known\nstory of Damon and Pythias, and hostages were frequently punished in\nthis manner.\n\nWhat has been said of life may be applied to the limbs also, which no\nman has a right to part with, except for the preservation of the whole\nbody. But if any one has engaged to suffer banishment, to submit to a\npecuniary fine, or any other means of satisfying justice, any thing he\nsuffers on this account will not, strictly speaking, be considered as a\nPERSONAL punishment, but as the performance of an agreement.\n\nSomething like this occurs in the right, which any one possesses\ndependent on another's will, both with respect to the right of\nindividuals to private property, and to the more extensive right to\ndemesnes possessed by a state. For if any one is deprived of such a\nthing owing to another's fault, here the executive power depriving that\nperson, is not inflicting a punishment on HIM, but only exercising a\nprior right.\n\nXII. and XIII. Having laid down these distinctions, we may observe that\nit is impossible that an innocent person should suffer for another's\ncrime. This does not proceed from the reasons given by Paulus, who\nmaintains that punishment is designed for the reformation of the\noffender. For it seems possible that an example may be made, extending\nbeyond the person of the criminal himself, when it affects, in its\nconsequences, those, who are nearly related to him. So that it is not\nfor the sake of example only that punishment is inflicted, but because\nthe obligation thereto arises from the demerit of the offending party.\nNow every demerit must be of a personal nature, as it proceeds from\na man's own will, over which he is supposed to exercise a perfect\ncontroul.\n\nXIV. In the law given to the Hebrews, God threatens to avenge the\nimpiety of fathers upon their children. But he has sovereign dominion\nover our lives and substance, as being his gift, which he may take\naway from any one, whenever he pleases, without assigning his reasons.\nTherefore if he thinks proper to take away by a premature or violent\ndeath the children of Achan, Saul, Jeroboam or Ahab, he is exercising\nover them the right of sovereignty, as well as that of punishment;\nimposing by that awful example the more severe penalty upon the\nparents. For if they survive their children, which was what the divine\nlaw had most in view, and therefore did not extend these threats beyond\nthe time of great grand-children, a period to which the age of man\nmight reach, it is certain that parents would be severely punished by\nsuch a sight, the most afflicting of any they could witness. Or if they\nshould not survive such an event, to die under such an apprehension\nwould be a great calamity.\n\nBut it is proper to remark that examples like those are never employed\nby God, except against crimes affecting his divine Majesty, as false\nworship, perjury or sacrilege. Indeed those threats of divine vengeance\nare not always enforced; especially where any extraordinary virtue\nshines in the characters and conduct of the children: as may be seen in\nthe xviii. chapter of the prophesy of Ezekiel. Plutarch has discussed\nthis topic with great eloquence in his book on the remote vengeance of\nGod.\n\nAs the Gospel so clearly unfolds the future punishments of the wicked,\nall the threats contained in that new covenant terminate in the\npersons of the offenders themselves. But the ways of providence in\nthese respects are not the rule which men can follow. For God, even\nwithout any reference to crime, is the sovereign lord and disposer of\nhuman life, a commission which man is only allowed to execute against\nthe perpetrators of certain crimes. Wherefore as that same divine law\nforbids parents to be put to death for the offences of children, so\nit exempts children from the same punishment for the actions of their\nfathers: a lenity which is greatly commended by Josephus and Philo.\nThe same commendation is bestowed by Isocrates upon the laws of Egypt;\nand by Dionysius of Halicarnassus upon those of Rome.\n\nXV. But if it is unjust in human laws to punish the misconduct of\nparents in the persons of their children, how much more severe was the\nlaw of the Persians and Macedonians extending the penalties for crimes\nagainst the state to every branch of the offender's relatives, in the\nmost remote degree, a law surpassing all others in rigour?\n\nXVI. XVII. and XVIII. What has been said respecting the punishment\nof children for the offences of their fathers or forefathers, may be\napplied to the relation subsisting between sovereigns and subjects. For\nit is a relation springing from the contract of society, which makes\nthe sovereign the essential head, life and soul of that body, in which\nhis people form the members. As the civil community therefore with its\nsovereign or head forms but one body, there can be no separation of\ninterests, but what affects one part must be prejudicial or serviceable\nto the whole.\n\nXIX. Why should an heir, it has been sometimes asked, be bound by other\ndebts of his ancestor, and not feel the effects of his punishment for\nmisconduct? to which answer may be given, that the heir represents\nthe person of the deceased not in his merits or demerits, which are\npurely personal, but in his property; an artificial mode of preserving\nunbroken the chain of succession and descent.\n\nXX. And hence it follows, that if in addition to the demerit of an\noffence, any new grounds of obligation should arise connected with the\npunishment, they must be discharged not properly as a punishment, but\nas a debt. Thus the heir will be liable to pay the costs awarded by a\njudgment after a contested suit, which is considered in the light of a\ncontract.\n\n\n\n\nCHAPTER XXII.\n\nON THE UNJUST CAUSES OF WAR.\n\n Differences between real and colourable motives--War atrocious\n without either of these motives--Wars of plunder, under the\n most plausible pretexts, not justifiable--Causes apparently,\n but not really just--Unnecessary advantage--Desire of a better\n soil--Discovery of things belonging to others--Incapacity of the\n original owners--War not always justifiable under the pretext\n of asserting liberty--Or of imposing a beneficial government\n upon a people against their will--Emperor's pretensions to\n universal empire refuted--Pretensions of the Church--Imperfect\n obligations--Difference between wars originally unjust and those\n afterwards becoming so.\n\n\nI. In a former part of this work, where the justice of war was\ndiscussed, it was observed that some wars were founded upon real\nmotives and others only upon colourable pretexts. This distinction\nwas first noticed by Polybius, who calls the pretexts, \u03c0\u03c1\u03bf\u03c6\u03b1\u03c3\u03b5\u03b9\u03c2\n{prophaseis}, and the real causes, \u03b1\u1f30\u03c4\u03b9\u03b1\u03c2 {aitias}. Thus Alexander made\nwar upon Darius, under the pretence of avenging the former wrongs done\nby the Persians to the Greeks. But the real motive of that bold and\nenterprising hero, was the easy acquisition of wealth and dominion,\nwhich the expeditions of Xenophon and Agesilaus had opened to his view.\n\nIn the same manner, a dispute about Saguntum furnished the\nCarthaginians with COLOURABLE MOTIVES for the second Punic war, but,\nin REALITY, they could not brook the indignity of having consented to\na treaty, which the Romans had extorted from them at an unfavourable\nmoment; and more especially as their spirits were revived by their\nrecent successes in Spain. The real causes assigned by Thucydides\nfor the Peloponnesian war, were the jealousies entertained by the\nLacedaemonians of the then growing power of the Athenians, though the\nquarrels of the Corcyreans, Potidaens, and other secondary states were\nmade the ostensible reasons.\n\nII. There are some who have neither ostensible reasons, nor just causes\nto plead for their hostilities, in which, as Tacitus says, they engage\nfrom the pure love of enterprise and danger. A disposition to which\nAristotle gives the name of ferocity. And in the last book of his\nNicomachean Ethics, he calls it a bloody cruelty to convert friends\ninto enemies, whom you may slaughter.\n\nIII. Though most powers, when engaging in war, are desirous to colour\nover their real motives with justifiable pretexts, yet some, totally\ndisregarding such methods of vindication, seem able to give no better\nreason for their conduct, than what is told by the Roman Lawyers of a\nrobber, who being asked, what right he had to a thing, which he had\nseized, replied, it was his own, because he had taken it into his\npossession? Aristotle in the third book of his Rhetoric, speaking of\nthe promoters of war, asks, if it is not unjust for a neighbouring\npeople to be enslaved, and if those promoters have no regard to the\nrights of unoffending nations? Cicero, in the first book of his\nOffices, speaks in the same strain, and calls \"the courage, which is\nconspicuous in danger and enterprise, if devoid of justice, absolutely\nundeserving of the name of valour. It should rather be considered as a\nbrutal fierceness outraging every principle of humanity.\"\n\nIV. Others make use of pretexts, which though plausible at first sight,\nwill not bear the examination and test of moral rectitude, and, when\nstripped of their disguise, such pretexts will be found fraught with\ninjustice. In such hostilities, says Livy, it is not a trial of right,\nbut some object of secret and unruly ambition, which acts as the chief\nspring. Most powers, it is said by Plutarch, employ the relative\nsituations of peace and war, as a current specie, for the purchase of\nwhatever they deem expedient.\n\nBy having before examined and established the principles of just and\nnecessary war, we may form a better idea of what goes to constitute\nthe injustice of the same. As the nature of things is best seen by\ncontrast, and we judge of what is crooked by comparing it with what\nis straight. But for the sake of perspicuity, it will be necessary to\ntreat upon the leading points.\n\nIt was shewn above that apprehensions from a neighbouring power are\nnot a sufficient ground for war. For to authorize hostilities as a\ndefensive measure, they must arise from the necessity, which just\napprehensions create; apprehensions not only of the power, but of the\nintentions of a formidable state, and such apprehensions as amount\nto a moral certainty. For which reason the opinion of those is by no\nmeans to be approved of, who lay down as a just ground of war, the\nconstruction of fortifications in a neighbouring country, with whom\nthere is no existing treaty to prohibit such constructions, or the\nsecuring of a strong hold, which may at some future period prove a\nmeans of annoyance. For as a guard against such apprehensions, every\npower may construct, in its own territory, strong works, and other\nmilitary securities of the same kind, without having recourse to actual\nwar. One cannot but admire the character, which Tacitus has drawn\nof the Chauci, a noble and high-spirited people of Germany, \"who,\n_he says_, were desirous of maintaining their greatness by justice,\nrather than by acts of ungovernable rapacity and ambition--provoking\nno wars, invading no countries, spoiling no neighbours to aggrandize\nthemselves,--yet, when necessity prompted, able to raise men with\narms in their hands at a moment's warning--a great population with a\nnumerous breed of horses to form a well mounted cavalry--and, with all\nthese advantages, upholding their reputation in the midst of peace.\"\n\nVI.[55] Nor can the advantage to be gained by a war be ever pleaded as\na motive of equal weight and justice with necessity.\n\nVII. and VIII. Neither can the desire of emigrating to a more\nfavourable soil and climate justify an attack upon a neighbouring\npower. This, as we are informed by Tacitus, was a frequent cause of war\namong the ancient Germans.\n\nIX. There is no less injustice in setting up claims, under the pretence\nof newly discovered titles, to what belongs to another.\n\nNeither can the wickedness, and impiety, nor any other incapacity of\nthe original owner justify such a claim. For the title and right by\ndiscovery can apply only to countries and places, that have no owner.\n\nX. Neither moral nor religious virtue, nor any intellectual excellence\nis requisite to form a good title to property. Only where a race of\nmen is so destitute of reason as to be incapable of exercising any act\nof ownership, they can hold no property, nor will the law of charity\nrequire that they should have more than the necessaries of life. For\nthe rules of the law of nations can only be applied to those, who are\ncapable of political or commercial intercourse: but not to a people\nentirely destitute of reason, though it is a matter of just doubt,\nwhether any such is to be found.\n\nIt was an absurdity therefore in the Greeks to suppose, that difference\nof manners, or inferiority of intellect made those, whom they were\npleased to call barbarians, their natural enemies. But as to atrocious\ncrimes striking at the very root and existence of society, the\nforfeiture of property ensuing from thence is a question of a different\nnature, belonging to punishments, under the head of which it was\ndiscussed.\n\nXI. But neither the independence of individuals, nor that of states,\nis a motive that can at all times justify recourse to arms, as if\nall persons INDISCRIMINATELY had a natural right to do so. For where\nliberty is said to be a natural right belonging to all men and states,\nby that expression is understood a right of nature, antecedent to every\nhuman obligation or contract. But in that case, liberty is spoken of\nin a negative sense, and not by way of contrast to independence, the\nmeaning of which is, that no one is by the law of nature doomed to\nservitude, though he is not forbidden by that law to enter into such\na condition. For in this sense no one can be called free, if nature\nleaves him not the privilege of chusing his own condition: as Albutius\npertinently remarks, \"the terms, freedom and servitude are not founded\nin the principles of nature, but are names subsequently applied to men\naccording to the dispositions of fortune.\" And Aristotle defines the\nrelations of master and servant to be the result of political and not\nof natural appointment. Whenever therefore the condition of servitude,\neither personal or political, subsists, from lawful causes, men should\nbe contented with that state, according to the injunction of the\nApostle, \"Art thou called, being a servant, let not that be an anxious\nconcern?\"\n\nXII. And there is equal injustice in the desire of reducing, by force\nof arms, any people to a state of servitude, under the pretext of\nits being the condition for which they are best qualified by nature.\nIt does not follow that, because any one is fitted for a particular\ncondition, another has a right to impose it upon him. For every\nreasonable creature ought to be left free in the choice of what may be\ndeemed useful or prejudicial to him, provided another has no just right\nto a controul over him.\n\nThe case of children has no connection with the question, as they are\nnecessarily under the discipline of others.\n\nXIII. It would scarce have been necessary to refute the foolish opinion\nof some, who have ascribed to the Roman Emperors dominion over the\nmost remote and unknown nations, if Bartolus, deemed a lawyer of the\nfirst eminence, had not pronounced it heresy to deny those pretensions.\nThis opinion has been built upon the Roman Emperor's some times having\nstyled himself Sovereign of the whole world; a term which it was\nnot unusual for many people to apply to their own country. Thus in\nthe scriptures we find Judea frequently called the whole inhabited\nearth; therefore when the Jews, in their proverbial expression, called\nJerusalem the centre of the world, nothing more is to be implied than\nthat it was situated in the middle of Judea.\n\nAs to the argument in favor of universal dominion from its being so\nbeneficial to mankind, it may be observed that all its advantages are\ncounterbalanced by still greater disadvantages. For as a ship may be\nbuilt too large to be conveniently managed, so an empire may be too\nextensive in population and territory to be directed and governed\nby one head. But granting the expediency of universal empire, that\nexpediency cannot give such a right, as can be acquired only by treaty\nor conquest. There were many places formerly belonging to the Roman\nEmpire, over which the Emperor has at present no controul. For war,\ntreaty, or cession have made many changes, by which the rights of\nterritory have passed to other states or sovereign princes, and the\nstandards of different communities, whether kingdoms or commonwealths,\nnow wave in places, which the Roman Eagle once overshadowed with his\nwings. These are losses and changes, that have been experienced by\nother powers no less than that, which was once mistress of the world.\n\nXIV. But there have been some, who have asserted the rights of the\nchurch over unknown parts of the world, though the Apostle Paul\nhimself has expressly said that Christians were not to judge those\nwho were without the pale of their own community. And though the\nright of judging, which belonged to the Apostles, might in some\ncases apply to worldly concerns, yet in its general nature it was of\na celestial rather than an earthly kind--a judgment not exercised\nby fire and sword, but by the word of God, proposed to all men and\nadapted to their peculiar circumstances--a judgment exercised by\ndisplaying or withholding the seals of divine grace, as it might be\nmost expedient--lastly, it was a judgment exercised in supernatural\npunishments; in punishments proceeding from God, like the punishments\nof Ananias, Elymas, Hymenaeus, and others.\n\nChrist himself, the spring, from whence all the power of the church was\nderived, and whose life is the model for the church to follow, said,\nhis kingdom was not of this world, that is, was not of the same nature,\nwith other kingdoms, otherwise, like the rest of sovereigns, he would\nhave maintained his authority by the power of the sword. For if he had\npleased to call up the aid of Legions; he would have called up hosts of\nAngels and not of men. And every exercise of his right was performed\nby the influence of divine, and not of human power; even when he drove\nthe sellers out of the temple. For the ROD was the EMBLEM and not the\nINSTRUMENT of divine wrath, as UNCTION was once a SIGN of healing, and\nnot the HEALING POWER ITSELF. St. Augustin on the xviii Chapter of\nSt. John, and 36 ver. invites Sovereign Princes into this kingdom, in\nthese terms, \"Hear, O Jews, and Gentiles, hear, O earthly Sovereigns, I\nwill not obstruct your authority, for my kingdom is not of this world.\nBe not alarmed, like Herod, who trembled, when he heard that Christ\nwas born, and slew so many innocent children, hoping to include the\nSaviour in that calamity. His fear shewed itself in cruel wrath. But\nmy kingdom, says Christ, is not of this world. Therefore enter this\nkingdom without fear. Come with faith, and provoke not the king to\nanger by your delay.\"\n\nXV. There is a caution too necessary to be given, against drawing\ntoo close a parallel between ancient and modern times. For it is but\nseldom that any one can adduce a case exactly conformable to his\nown circumstances. To draw such pretexts from the interpretation of\nprophecy is the highest presumption. For no prophecy that is yet to\nbe fulfilled can be unfolded without the aid of a prophetic spirit.\nThe times even of events, that are certain, may escape our notice.\nNor is it every prediction, unless it be accompanied with an express\ncommand from God, that can justify recourse to arms: sometimes indeed\nGod brings his predicted designs to their issue by the means of wicked\ninstruments.\n\nXVI. As the imperfect obligations of charity, and other virtues of the\nsame kind are not cognizable in a court of justice, so neither can the\nperformance of them be compelled by force of arms. For it is not the\nmoral nature of a duty that can enforce its fulfillment, but there must\nbe some legal right in one of the parties to exact the obligation. For\nthe moral obligation receives an additional weight from such a right.\nThis obligation therefore must be united to the former to give a war\nthe character of a just war. Thus a person who has conferred a favour,\nhas not, strictly speaking, a RIGHT to demand a return, for that would\nbe converting an act of kindness into a contract.\n\nXVII. It is necessary to observe that a war may be just in its origin,\nand yet the intentions of its authors may become unjust in the course\nof its prosecution. For some other motive, not unlawful IN ITSELF,\nmay actuate them more powerfully than the original right, for the\nattainment of which the war was begun. It is laudable, for instance,\nto maintain national honour; it is laudable to pursue a public or a\nprivate interest, and yet those objects may not form the justifiable\ngrounds of the war in question.\n\nA war may gradually change its nature and its object from the\nprosecution of a right to the desire of seconding or supporting the\naggrandizement of some other power. But such motives, though blamable,\nwhen even connected with a just war, do not render the war ITSELF\nunjust, nor invalidate its conquests.\n\n\n\n\nCHAPTER XXIII.\n\nON DOUBTFUL CAUSES.\n\n Origin of moral doubts--The dictates of conscience, though erroneous,\n not to be violated--Opposite opinions supported by argument, or\n by authority--In doubtful and important matters the safer side of\n the question to be followed--In such cases it is right to abstain\n from war--Disputes settled by conference or arbitration--Christian\n duties--Whether single combat is allowable in order to avoid\n war--In cases of equal doubt the claims of the present possessor to\n be preferred--Where neither party is in possession, claims to be\n divided--Whether a war can be just on both sides, explained by a\n distinction.\n\n\nI. There is much truth in Aristotle's observation that moral reasonings\ncan never amount to the certainty of mathematical demonstration.\nBecause in mathematical reasoning, all the figures are considered\nin the abstract, purely by themselves, and without relation to the\ncircumstances of time or place, so that there is nothing to warp the\njudgment from the object immediately under consideration. Besides the\nfigures in general form a direct contrast to each other. Thus, for\ninstance, there is no intermediate line between a straight line and a\ncurve.\n\nBut it is not so in morals, where the least circumstances vary the\nsubject, and admit a latitude of interpretation, settling the points\nof truth and justice between two extremes. So that between what is\nright and what is unlawful there is a middle space, where it is easy to\nincline to the one side, or to the other. This occasions an ambiguity\nsomewhat like the difficulty of deciding the precise moment, where the\ntwilight begins, and where it ends. From hence Aristotle concludes that\nit is sometimes difficult to determine, between two extremes, what line\nof conduct ought to be chosen or rejected.\n\nII. But it must be laid down as a necessary principle, that although\nan action may in reality be just, yet if the party doing it, after\nweighing every circumstance, cannot reconcile the act to his\nconscience, he incurs some degree of guilt. \"For whatever is not of\nfaith, _says the Apostle_, is sin;\" where, by the term faith he means\na deliberate judgment of the mind. For God has given conscience a\njudicial power to be the sovereign guide of human actions, by despising\nwhose admonitions the mind is stupified into brutal hardness. For\nit often happens that judgment can point out nothing certain, but\nhesitates; and when such doubts and hesitations cannot satisfactorily\nbe cleared up, the rule of Cicero is a safe one to follow, who says,\nthat it is an excellent injunction, which forbids us to do a thing of\nthe rectitude or impropriety of which we entertain a doubt.\n\nBut this rule cannot be applied, where of two things, in the choice\nof which there is equal doubt, the one must be done, in which case\nthat must be selected, which seems to be the least unjust. For on all\noccasions, where a choice cannot be avoided, the less of two evils\nassumes the appearance of a virtue.\n\nIII. But in doubtful cases, after examination, the mind seldom remains\nneuter, but inclines to one side, or the other, persuaded either by\nthe merits of the case, or by respect for the judgment of those, who\nhave delivered an opinion upon the question. Now the merits of the case\nare derived either from the causes, the effects, or other concomitant\ncircumstances.\n\nIV. To apprehend such distinctions properly, practice and penetration\nare necessary, and where men have not in themselves a capacity for\nthe active exercise of judgment it behoves them to follow the maxims\nof others, who are distinguished by their wisdom and experience.\nFor, in the opinion of Aristotle, those things are probably just, or\ntrue, which seem so to all, or to the greater part of men of worth.\nAnd this is the method of judging pursued by Sovereign Princes, whose\nengagements in the affairs of life allow them but little leisure\nfor study and deliberation. Thus the ancient Romans never undertook\nwars, till they had consulted the sacred college, established for\nthat purpose, and the Christian Emperors scarcely ever did so without\nadvising with the Bishops, in order to be apprized of any thing therein\nthat might affect religion.\n\nV. It may happen in many disputed points, that the intrinsic merits of\nthe case, or the opinions of the learned, are equal on both sides. When\nthat happens, if the matters in discussion are of no great importance,\nthere is nothing to blame in the person, that makes his choice either\nway. But in matters of moment, where the lives of men are at stake, the\ndecision should incline to the safer side, according to the proverbial\nmaxim, which pronounces it better to acquit the guilty than to condemn\nthe innocent.\n\nVI. War then being an object of such weighty magnitude, in which the\ninnocent must often be involved in the sufferings of the guilty,\nbetween wavering opinions the balance should incline in favour of peace.\n\nThere are three methods, by which independent nations may settle their\ndisputed rights without coming to the decision of the sword.\n\nVII. The first method is that of conference. For, in the words\nof Cicero, \"there being two methods of deciding quarrels, the\none by discussion and the other by force, the former, a peculiar\ncharacteristic of man, and the latter, of the brute creation: when\nthe first of these methods fails, men are obliged to have recourse\nto the latter.\" Mardonius, in the Polyhymnia of Herodotus, blames\nthe Grecians, who, being united in one language, might settle their\nquarrels by messengers of peace, by heralds, and negotiations, rather\nthan by war.\n\nVIII. The other method is that of compromise, which takes place\nbetween those, who have no common judge. Among innumerable instances\nof this kind in ancient history, we may select that given by Xenophon\nin his account of Cyrus, where that prince takes the king of the\nIndians for arbitrator between himself and the king of Assyria. The\nCarthaginians in their disputes with Masinissa prefer a settlement of\nthis kind before a decision of war. Livy too informs us that the Romans\nthemselves, in a dispute with the Samnites, made an appeal to the\ncommon allies of both.\n\nThe office of deciding wars and putting an end to the contentions of\narmies was assigned, according to Strabo, to the Druids of the Gauls,\nand upon the testimony of the same writer, it formed a part of the\npriestly functions among the Iberians.\n\nSurely then it is a mode of terminating their disputes, balancing\ntheir powers, and settling their pretensions worthy to be adopted by\nChristian Kings and States. For if, in order to avoid trials before\njudges who were strangers to the true religion, the Jews and Christians\nappointed arbitrators of their own, and it was a practice recommended\nand enjoined by St. Paul, how much more ought such a practice to be\nrecommended and enforced, to gain the still nobler end of preventing\nthe calamities of war.\n\nThese and many other reasons of no less importance might be advanced\nfor recommending to Christian powers general congresses for the\nadjustment of their various interests, and for compelling the\nrefractory to submit to equitable terms of peace.\n\nIX. A third method of terminating disputes, without hostilities, was\nby lot, a practice commended by Dion Chrysostom in his speech on the\ninterposition of fortune in directing affairs, and it was commended\nlong before him by Solomon in the xviii. chapter of his Proverbs.\n\nX. Nearly related to the last named method is that of single combat, a\npractice recommended under the idea that by the risque of two lives a\nquarrel might be decided, which would otherwise have cost the blood of\nthousands. In Livy we find Metius addressing Tullus in the following\nterms, \"let us try some method of determining to whom the pre-eminence\nshall belong, without wasting the blood of each people.\" Strabo says\nit was the practice of the ancient Greeks, and Aeneas proposed it to\nTurnus, as the most equitable way of settling their pretensions. It is\ndescribed too as the custom of the ancient Franks.\n\nXI. Although in doubtful cases, both sides are bound to devise every\nmeans of avoiding hostilities, yet it is a duty more incumbent upon\nthe claimant than upon the immediate possessor of whatever may be the\nsubject of dispute. For it is a rule not only of civil, but of natural\nlaw, that, where the pretensions are equal, those of the possessor are\nto be preferred.\n\nTo the foregoing remarks an additional observation may be made, that if\nany one, knowing his pretensions to be just, cannot produce sufficient\nproofs to convict the intruder of injustice, he cannot lawfully have\nrecourse to arms, because he has no OSTENSIBLE RIGHT, by which he can\ncompel the intruder to relinquish the possession.\n\nXII. But where the right is ambiguous, and neither party has\npossession, the pretender, who refuses to divide the claims, may\nreasonably be charged with injustice.\n\nXIII. From what has been said it will not be difficult to settle a\nmuch agitated question, whether, with respect to those, who are the\nprincipal movers of a war, there can be justice on both sides. For\nthere are distinctions proper to be made in the various acceptations of\nthe word JUST.\n\nA thing is said to be just, either as to its causes, or its effects.\nThe causes too may be confined either to justice in a PARTICULAR\nacceptation, or they may be extended so as to include under that\nname every kind of rectitude. Again, a particular acceptation may be\ndivided into two kinds, one relating to the ACTION, and the other to\nthe agent.[56] An agent may be said to act justly, when, in what he\ndoes, he commits no breach of STRICT LAW, though his conduct may not be\nconformable to equity.\n\nIn a PARTICULAR acceptation of the word justice, with regard to\na matter in dispute, it cannot in war, any more than in legal\nproceedings, apply to both sides. For there can be no moral principle,\ncommanding us, under the same circumstances, both to DO, and to ABSTAIN\nfrom a particular action. It may happen indeed that neither of two\nbelligerent powers may act unjustly. For no one can be charged with\nacting unjustly unless he knows that he is doing so; but there are\nmany, who are not aware of the nature, extent, and consequences of\ntheir measures. Thus in a law-suit, both parties may sincerely believe\nthat they have justice on their side. For many things both in law and\nfact, which would establish a right, may escape the notice of men.\n\nIn a GENERAL acceptation, an action may be called just, where the\nagent is free from every kind of blame. Yet in many cases an agent may\ndeviate from the strict rules of legal justice, and be liable to no\nblame, when that deviation is owing to unavoidable ignorance, there\nhaving been neither time nor opportunity sufficient for him to know\nthe substance, or perhaps existence of the law. So it may happen in\nlaw-suits, that both parties are free not only from the imputation\nof injustice, but from all blame, especially where either of them is\nlitigating a matter not on his own, but on another's account; as for\ninstance where a guardian is acting for his ward, he would not be\nauthorized in abandoning even a doubted right. Aristotle says that in\nmatters of disputed right neither side can be charged with injustice;\nconformably to which opinion Quintilian observes that an upright\npleader may be engaged on either side of the question. Aristotle\nfurther observes that passing a just judgment is an ambiguous term,\nsignifying that a judge determines either according to the strict\nletter of the law, or according to the dictates of his own conscience.\nAnd, in another place, he has said that giving a wrong judgment through\nignorance is no act of injustice.\n\nBut in matters of war and peace, where such weighty and varied\ninterests on all sides are concerned, it would be difficult to obtain\na judgment purely impartial, and abstracted from all personal motives,\nunless there be the most clear and undeniable evidence on the points in\nquestion.\n\nIf we denominate a thing to be just, from its effect in conferring\ncertain rights, in this sense it is plain that in war there may be\njustice on both sides. In the same manner, a sentence not strictly\nlegal, or a possession not perfectly just may nevertheless confer\ncertain rights.\n\n\n\n\nCHAPTER XXIV.\n\nPRECAUTIONS AGAINST RASHLY ENGAGING IN WAR, EVEN UPON JUST GROUNDS.\n\n Relaxation of right in order to avoid war--particularly\n penalties--Self-preservation motive for forbearing\n hostilities--Prudential rules in the choice of advantages--Peace\n preferable to the extermination of hostile powers--Forbearance\n prudent in inferior powers--War not to be undertaken, but from\n necessity.\n\n\nI. Although it seems not to fall within the immediate province of a\ntreatise, entitled the RIGHTS OF WAR, to enter into an investigation of\nother moral duties, which the relations of war and peace prescribe, yet\nit may not be improper slightly to touch upon certain errors, which it\nis necessary to obviate, in order to prevent any one from supposing,\nthat, after establishing the right of war, he is authorized, INSTANTLY\nor at ALL TIMES, to carry his principles into action, and to reduce his\ntheory to practice. So far from this, it frequently happens that it is\nan act of greater piety and rectitude to yield a right than to enforce\nit.\n\nIt was before shewn, in its proper place how honourable it is to be\nregardless of our own lives, where we can preserve the lives, and\npromote the lasting welfare of others. A duty that should operate with\ngreater force upon Christians, who have before their eyes continually\nthe example of him, who died to save us, while we were enemies and\nungodly. An example which calls upon us, in the most affecting manner,\nnot to insist upon the rigorous prosecution of our justest rights,\nwhere it cannot be done but by the calamities, which war occasions.\nIf arguments and motives like these wanted authorities, abundance of\nauthorities might be adduced for their support.\n\nII. Many reasons might be brought to dissuade us from urging the full\ninfliction of a punishment. There is an obvious instance in the conduct\nof fathers, who connive at many faults in their children. But whoever,\nis authorized to punish another, assumes the character of a sovereign\nruler, that is, of a father; in allusion to which St. Augustin,\naddressing Count Marcellinus, says, \"O Christian Judge, fulfil the\noffice of a pious father.\"\n\nSometimes indeed men are so circumstanced, that to relinquish a right\nbecomes not only a laudable act, but a debt of respect to that law,\nwhich commands us to love our enemies: a law to be respected and obeyed\nnot only for its intrinsic value, but as being a precept of the gospel.\nBy the same law, and for the same reasons, we are commanded to pray for\nand to promote the welfare and safety of Christian Princes and Kings,\nbecause their welfare and safety are so essential to the order, peace,\nand happiness of society.\n\nIII. With respect to the pardon of offences committed against\nourselves, little need be said, as it is known to be a leading clause\nin the code of a Christian's duty, to which he readily and freely\nsubmits, knowing that God for Christ's sake has forgiven him. Thus\nrevealed law adds a sanction to what was known by heathens to be an\namiable precept. Cicero has drawn a fine character of Caesar, in which\nhe commends the excellence of his memory that could recollect every\nthing but injuries. We find many noble examples of this excellent\nvirtue in the writings of Moses and in various other parts of\nscripture. These, and these motives ALONE, when they can safely be\ncomplied with are sufficient to keep the sword within its scabbard. For\nthe debt of love and forbearance to our enemies is an obligation, which\nit is honourable to discharge.\n\nIV. It is often a duty, which we owe to our country and ourselves,\nto forbear having recourse to arms. After the college of heralds had\npronounced a war to be just we are informed by Plutarch in the life of\nNuma, that the Senate further deliberated, whether it was expedient\nto undertake it. According to our Saviour's beautiful and instructive\nparable, a king, when he is obliged to go to war with another king,\nshould first sit down, an expression implying an act of deliberation,\nand consider within himself, whether, with ten thousand men he is\nable to encounter one who is coming against him with twenty times\nthat number: and if he finds himself unequal to the contest, before\nthe enemy has entered his territories he will send an embassy to him\noffering terms of peace.\n\nV. In all cases of deliberation, not only the ultimate but the\nintermediate objects leading to the principal ends are to be\nconsidered. The final object is always some good, or at least the\nevasion of some evil, which amounts to the same. The means are never\nto be considered by THEMSELVES, but only as they have a tendency to the\nproposed end. Wherefore in all cases of deliberation, the proportion,\nwhich the means and the end bear to each other, is to be duly weighed,\nby comparing them together: a mode of comparison, in which there are\nthree rules necessary to be observed.\n\nThe first thing, in a moral point of view, to be considered is, what\ntendency the desired object has to produce good or evil; and, if the\nformer has the preponderancy, we are then at liberty to chuse it.--In\nthe second place, if it appears difficult to decide, whether the good\nor the evil predominates, we may chuse the object, if, in the choice\nand use of our means, we can give a turn to affairs, that may throw\nthe preponderance into the scale of advantage--or lastly if the good\nand the evil bear no proportion to each other, nor the means, AT THE\nFIRST VIEW, appear adequate to the end, if, in pursuing an object,\nthe tendency to good, compared with the tendency to evil be greater\nthan the evil itself when compared with the good; or if the good,\nin comparison of the evil, be greater than the tendency to evil, in\ncomparison of the tendency to good,[57] we may decide in favour of it.\n\nCicero has treated these abstruse points in a more popular and pleasing\nmanner than abstract reasoning would allow. Applying all the beauties\nof eloquence to elucidate moral truth, he says, \"it is the height of\nfolly and presumption UNNECESSARILY to expose ourselves to dangers. In\nencountering calamities we must imitate the conduct of physicians who\nuse gentle remedies with weakly constitutions. But in constitutions\nof a stronger cast, especially, in virulent disorders, they must\nhave recourse to more powerful, though more dangerous expedients. In\nthe same manner, a skilful pilot would not attempt to face the wind\ndirectly, but would tack about in order to avoid its fury.\"\n\nVI. An example of evils, that ought by all possible means to be\navoided, is furnished by the consultations among the states of Gaul,\nwho, according to the account of Tacitus, deliberated, whether they\nshould make choice of liberty or peace. By liberty is here meant civil\nliberty, that is, the right of governing themselves, and remaining\nindependent states; and by peace is meant such a peace as would prevent\nthe whole people from being exterminated, a calamity like that which\nbefel the Jews, when their city was besieged by Titus.\n\nIn such cases reason itself dictates the choice of peace, as the only\nmeans of preserving life, which is the immediate gift of God, and the\nfoundation of every blessing. So that the Almighty, as we read in\nhis sacred volume, deems it a kindness, when instead of destroying\na people, he permits them to be reduced to slavery. Therefore he\nadmonishes the Hebrews, by the mouth of his prophet, to surrender to\nthe Babylonians, rather than to die by pestilence and famine.\n\nWhat has been said of submitting to disadvantages, and some calamities\nfor the preservation of life or liberty, may be applied to every object\nof dear value. As Aristides says, it is a moral duty in a storm, to\nsave the ship by casting overboard the goods, but not the crew.\n\nVII. In exacting punishment it is necessary to use the precaution of\navoiding hostilities with a power of equal strength. For to avenge a\nwrong, or to assert a right by force of arms requires a superiority of\nstrength. So that not only prudence, but a regard for their subjects\nwill at all times deter rulers from involving their people in the\ncalamities of war. A principle of justice too, the sole directress of\nhuman affairs, binding sovereigns and subjects to each other by their\nmutual interests, will teach this lesson of precaution. For reparation\nmust be looked for at the hands of those, who bring on the calamities\nof wanton and unnecessary war. Livy calls that a just, which is a\nnecessary war, and it is a pious cause, when no hope is left, but in\nrecourse to arms.\n\nVIII. It is but now and then a cause of such imperious necessity\noccurs, as to demand the decision of the sword, and that is, when, as\nFlorus says, the desertion of a right will be followed by calamities\nfar more cruel, than the fiercest wars. Seneca says, \"that it is right\nto meet danger, when equal harm would result from acquiescing in an\ninjury,\" and in this, he is supported by Tacitus, who calls \"war a\nhappy exchange for a miserable and insecure peace,\" and the same\nanimated writer in another place observes, that \"an oppressed people\nmay recover their liberty by daring enterprize, and, if defeated they\ncannot be reduced to greater subjection than before;\" a sentiment, with\nwhich Livy accords, in naming \"peace, when coupled with servitude, a\nfar more grievous calamity, than all the horrors of war.\" But it is not\nso, as Cicero says, where defeat will be attended with proscription,\nand victory with bondage.\n\nIX. Another necessary precaution relates to the TIME, when it is\nproper to undertake a war, which depends upon a due calculation,\nwhether there are resources and strength sufficient to support our just\npretensions. This is conformable to what was said by Augustus, that no\nwar should be undertaken, but where the hopes of advantage could be\nshewn to overbalance the apprehensions of ruin. Scipio Africanus, and\nLucius Aemilius Paulus used to speak in terms not inapplicable to this\nsubject, for they said \"it was never right to try the event of battle,\nbut under extreme necessity, or favourable circumstances.\"\n\nThe above precautions are of great use, where we hope by the dread and\nfame of our preparations to accomplish our object with little or no\ndanger.\n\n\n\n\nCHAPTER XXV.\n\nTHE CAUSES OF UNDERTAKING WAR FOR OTHERS.\n\n Sovereigns may engage in war to support the rights of their\n subjects--Whether an innocent subject can be delivered up to\n an enemy to avoid danger--Wars justly undertaken in support of\n confederates upon equal, or unequal terms--For friends--For\n any men--Omission of this duty not blamable, from motives of\n self-preservation--Whether war may be justly undertaken in defence\n of another's subjects, explained by distinctions.\n\n\nI. In speaking of belligerent powers, it was shewn that the law of\nnature authorises the assertion not only of our own rights, but of\nthose also belonging to others. The causes therefore, which justify\nthe principals engaged in war, will justify those also, who afford\nassistance to others. But whether any one presides over an household,\nor a state, the first and most necessary care is the support of his\ndependents or subjects. For the household forms but one body with the\nmaster, and the people with the sovereign. So the people of Israel\nunder the command of Joshua took up arms in support of the Gibeonites,\nwhom they had subdued. Our forefathers, said Cicero to the Romans,\noften engaged in war to support the rights of merchants, whose vessels\nhad been plundered. The same Romans who would refuse to take arms for\na people who were only allies, did not hesitate to assert by force of\narms the injured rights of the same, when they became their subjects.\n\nII. Yet the cause of any subject, although it may be a just cause, does\nnot always bind sovereigns or rulers to take arms: but only when it\ncan be done without inconvenience to all, or the greater part of their\nsubjects. For the interests of the whole community, rather than those\nof particular parts, are the principal objects of a sovereign's care;\nand the greater any part is, the nearer its claims and pretensions\napproximate to those of the whole.\n\nIII. Some have maintained the position, that if an enemy requires\nthe surrender of a citizen, however innocent, the demand must\nunquestionably be complied with, if the state is too feeble to resist\nit. This opinion is strongly controverted by Vasquez, but if we attend\nto his meaning more than his words, we shall find it to be the drift\nof his argument, that such a citizen ought not to be rashly abandoned,\nwhile there remains any possible hope of protecting him. For as a\ncase in point, he alleges the conduct of the Italian Infantry, who,\nupon receiving assurances of protection from Caesar, deserted Pompey,\neven before he was reduced to absolute despair: a conduct which he\ndeservedly reprobates in the strongest terms.\n\nBut whether an innocent citizen may be given up into the hands of an\nenemy to avoid imminent destruction, which would otherwise fall upon\nthe state, is a point that HAS BEEN formerly, and IS still disputed by\nthe learned, according to the beautiful fable, which Demosthenes told\nof the wolves, who demanded of the sheep the surrender of the dogs, as\nthe only terms of peace. The lawfulness of this is denied not only by\nVasquez, but by one, whose opinions that writer condemns, as bearing a\nnear approach to perfidy. Sotus holds it as an established maxim, that\nsuch a citizen is bound to deliver himself up: this Vasquez denies,\nbecause the nature of civil society, which every one has entered into\nfor his own advantage, requires no such thing.\n\nNo conclusion can be drawn from hence, except that a citizen is not\nbound to this by any RIGHT STRICTLY SO CALLED, while at the same time\nthe law of charity will not suffer him to act otherwise. For there are\nmany duties not properly included in the idea of strict justice. These\nare regarded as acts of good will, the performance of which is not only\ncrowned with praise, but the omission of them cannot escape censure.\n\nSuch is the complexion of the following maxim, that every one should\nprefer the lives of an innumerable and innocent multitude to his own\npersonal and private welfare. Cicero, in defending Publius Sextius,\nsays, \"If I were taking a voyage with my friends, and happening to\nmeet with a fleet of pirates, they threatened to sink our little bark,\nunless the crew surrendered me as the victim to appease their fury,\nI would sooner throw myself into the deep, than suffer my companions\nout of their affection to me to encounter sure death, or even imminent\ndanger.\"\n\nBut after establishing this point, there remains a doubt, whether any\none can be COMPELLED to do what he is BOUND to do. Sotus denies this,\nand in support of his argument quotes the case of a rich man, who,\nthough bound from motives of charity to supply the wants of the needy,\ncannot be compelled to do so. But the transactions of equals with each\nother, must be regulated upon principles very different from those\nthat regulate the mutual relations of sovereigns and subjects. For an\nequal cannot compel an equal to the performance of any thing, but what\nhe is strictly bound by law to perform. But a superior may compel an\ninferior to the performance of OTHER duties besides those of PERFECT\nOBLIGATIONS; for that is a right peculiarly and essentially belonging\nto the nature of superiority. Therefore certain legislative provisions\nmay be made, enacting the performance of such duties, as seem to\npartake of the nature of benevolence. Phocion, as it is mentioned in\nPlutarch's lives, said that the persons, whom Alexander demanded, had\nreduced the commonwealth to such distress, that if he demanded even his\ndearest friend Nicocles, he should vote for delivering him up.\n\nIV. Next to subjects, and even upon an equal footing with them, as to\nclaims of protection, are allies, a name including, in its consequences\nand effects, both those, who have formed a subordinate connection with\nanother power, and those who have entered into engagements of mutual\nassistance. Yet no such compacts can bind either of the parties to the\nsupport or prosecution of unjust wars. And this is the reason, why the\nLacedaemonians, before they went to war with the Athenians, left all\ntheir allies at liberty to decide for themselves upon the justice of\nthe quarrel. To which an additional observation may be made, that no\nally is bound to assist in the prosecution of schemes, which afford no\npossible prospect of a happy termination. For this would be defeating\nthe very end of alliances, which are contracted from motives of public\nadvantage, and not for a participation in ruin. But any power is\nobliged to defend an ally even against those, with whom it is already\nconnected by subsisting treaties, provided those treaties contain no\nexpress condition prohibiting such defence. Thus the Athenians might\nhave defended the Corcyraeans, IN A JUST CAUSE, even against the\nCorinthians, their more ancient allies.\n\nV. A third case is that, where assistance has not been expressly\npromised to a friendly power, and yet is due on the score of\nfriendship, if it can be given without inconvenience.\n\nUpon this principle Abraham took arms in defence of his kinsman Lot:\nand the Romans charged the Antiates to commit no acts of piracy upon\nthe Greeks, as being a people of the same kindred with the Italians. It\nwas no unusual thing with the Romans to begin, or at least to threaten\nto begin wars not only in support of allies, to whom they were bound by\ntreaty, but in support of any friendly powers.\n\nVI. The last and most extensive motive is the common tie of one COMMON\nNATURE, which alone is sufficient to oblige men to assist each other.\n\nVII. It is a question, whether one man is bound to protect another, or\none people another people from injury and aggression. Plato thinks that\nthe individual or state not defending another from intended violence\nis deserving of punishment. A case for which provision was made by the\nlaws of the Egyptians.\n\nBut in the first place it is certain that no one is bound to give\nassistance or protection, when it will be attended with evident danger.\nFor a man's own life and property, and a state's own existence and\npreservation are either to the individual, or the state, objects of\ngreater value and prior consideration than the welfare and security of\nother individuals or states.\n\nNor will states or individuals be bound to risk their own safety, even\nwhen the aggrieved or oppressed party cannot be relieved but by the\ndestruction of the invader or oppressor. For under some circumstances\nit is impossible successfully to oppose cruelty and oppression, the\npunishment of which must be left to the eternal judge of mankind.\n\nVIII. Though it is a rule established by the laws of nature and of\nsocial order, and a rule confirmed by all the records of history, that\nevery sovereign is supreme judge in his own kingdom and over his own\nsubjects, in whose disputes no foreign power can justly interfere.\nYet where a Busiris, a Phalaris or a Thracian Diomede provoke their\npeople to despair and resistance by unheard of cruelties, having\nthemselves abandoned all the laws of nature, they lose the rights of\nindependent sovereigns, and can no longer claim the privilege of the\nlaw of nations. Thus Constantine took up arms against Maxentius and\nLicinius, and other Roman emperors either took, or threatened to take\nthem against the Persians, if they did not desist from persecuting the\nChristians.\n\nAdmitting that it would be fraught with the greatest dangers if\nsubjects were allowed to redress grievances by force of arms, it\ndoes not necessarily follow that other powers are prohibited from\ngiving them assistance when labouring under grievous oppressions. For\nwhenever the impediment to any action is of a personal nature, and not\ninherent in the action itself, one person may perform for another,\nwhat he cannot do for himself, provided it is an action by which some\nkind service may be rendered. Thus a guardian or any other friend may\nundertake an action for a ward, which he is incapacitated from doing\nfor himself.\n\nThe impediment, which prohibits a SUBJECT from making resistance, does\nnot depend upon the nature of the OCCASION, which would operate equally\nupon the feelings of men, whether they were subjects or not, but\nupon the character of the persons, who cannot transfer their natural\nallegiance from their own sovereign to another. But this principle does\nnot bind those, who are not the liege-subjects of that sovereign or\npower. Their opposition to him or the state may sometimes be connected\nwith the defence of the oppressed, and can never be construed into an\nact of treason. But pretexts of that kind cannot always be allowed,\nthey may often be used as the cover of ambitious designs. But right\ndoes not necessarily lose its nature from being in the hands of wicked\nmen. The sea still continues a channel of lawful intercourse, though\nsometimes navigated by pirates, and swords are still instruments of\ndefence, though sometimes wielded by robbers or assassins.\n\n\n\n\nBOOK III.\n\n\n\n\nCHAPTER I.\n\nWHAT IS LAWFUL IN WAR.\n\n What is lawful in war--General Rules derived from the\n law of nature--Stratagems and lies--Arrangement of the\n following parts--First rule, all things necessary to the\n end lawful--Right resulting not only from the origin of\n a war, but from causes growing out of the same--Certain\n consequences justifiable, though not originally lawful--What\n measures are lawful against those who furnish an enemy with\n supplies--Stratagems--Negative--Positive--Sometimes allowable to\n use words in a sense different from the general acceptation--A\n lie according to the true notion of it injurious to the rights\n of others--Falsehood allowable in order to deceive children or\n madmen--Any one addressing another without intentions to deceive,\n not answerable for the misconceptions of a third person--A person\n not answerable for the wilful mistakes of those to whom he\n speaks--The fictitious threats of a person in authority--Fiction\n allowable in order to save the lives of the innocent, or to promote\n other equally important purposes--Deception lawful against an\n enemy, but not including promises, or oaths--To forbear using\n this privilege an act of generosity and Christian simplicity--Not\n allowable to urge others to what is unlawful for them, but not for\n us to do--Allowable to use the services of deserters.\n\n\nI. Having, in the preceding books, considered by what persons, and for\nwhat causes, war may be justly declared and undertaken, the subject\nnecessarily leads to an inquiry into the circumstances, under which war\nmay be undertaken, into the extent, to which it may be carried, and\ninto the manner, in which its rights may be enforced. Now all these\nmatters may be viewed in the light of privileges resulting simply from\nthe law of nature and of nations, or as the effects of some prior\ntreaty or promise. But the actions, which are authorised by the law of\nnature, are those that are first entitled to attention.\n\nII. In the first place, as it has occasionally been observed, the means\nemployed in the pursuit of any object must, in a great degree, derive\nthe complexion of their moral character from the nature of the end to\nwhich they lead. It is evident therefore that we may justly avail\nourselves of those means, provided they be lawful, which are necessary\nto the attainment of any right. RIGHT in this place means what is\nstrictly so called, signifying the moral power of action, which any one\nas a member of society possesses. On which account, a person, if he has\nno other means of saving his life, is justified in using any forcible\nmeans of repelling an attack, though he who makes it, as for instance,\na soldier in battle, in doing so, is guilty of no crime. For this is a\nright resulting not properly from the crime of another, but from the\nprivilege of self-defence, which nature grants to every one. Besides,\nif any one has SURE and UNDOUBTED grounds to apprehend imminent danger\nfrom any thing belonging to another, he may seize it without any regard\nto the guilt or innocence of that owner. Yet he does not by that\nseizure become the proprietor of it. For that is not necessary to the\nend he has in view. He may DETAIN it as a precautionary measure, till\nhe can obtain satisfactory assurance of security.\n\nUpon the same principle any one has a natural right to seize what\nbelongs to him, and is unlawfully detained by another: or, if that is\nimpracticable, he may seize something of equal value, which is nearly\nthe same as recovering a debt. Recoveries of this kind establish a\nproperty in the things so reclaimed; which is the only method of\nrestoring the equality and repairing the breaches of violated justice.\nSo too when punishment is lawful and just, all the means absolutely\nnecessary to enforce its execution are also lawful and just, and every\nact that forms a part of the punishment, such as destroying an enemy's\nproperty and country by fire or any other way, falls within the limits\nof justice proportionable to the offence.\n\nIII. In the second place, it is generally known that it is not the\nORIGIN only of a just war which is to be viewed as the principal source\nof many of our rights, but there may be causes growing out of that war\nwhich may give birth to additional rights. As in proceedings at law,\nthe sentence of the court may give to the successful litigant other\nrights besides those belonging to the original matter of dispute. So\nthose who join our enemies, either as allies or subjects, give us\na right of defending ourselves against THEM also. So too a nation\nengaging in an unjust war, the injustice of which she knows and ought\nto know, becomes liable to make good all the expences and losses\nincurred, because she has been guilty of occasioning them. In the\nsame manner those powers, who become auxiliaries in wars undertaken\nwithout any reasonable grounds, contract a degree of guilt and render\nthemselves liable to punishment in proportion to the injustice of their\nmeasures. Plato approves of war conducted so far, as to compel the\naggressor to indemnify the injured and the innocent.\n\nIV. In the third place, an individual or belligerent power may, in the\nprosecution of a lawful object, do many things, which were not in the\ncontemplation of the original design, and which in THEMSELVES it would\nnot be lawful to do. Thus in order to obtain what belongs to us, when\nit is impossible to recover the specific thing, we may take more than\nour due, under condition of repaying whatever is above the real value.\nFor the same reason it is lawful to attack a ship manned by pirates, or\na house occupied by robbers, although in that ship, or that house there\nmay be many innocent persons, whose lives are endangered by such attack.\n\nBut we have had frequent occasion to remark, that what is conformable\nto right taken in its strictest sense is not always lawful in a moral\npoint of view. For there are many instances, in which the law of\ncharity will not allow us to insist upon our right with the utmost\nrigour. A reason for which it will be necessary to guard against\nthings, which fall not within the original purpose of an action, and\nthe happening of which might be foreseen: unless indeed the action\nhas a tendency to produce advantages, that will far outweigh the\nconsequences of any accidental calamity, and the apprehensions of evil\nare by no means to be put in competition with the sure hopes of a\nsuccessful issue. But to determine in such cases requires no ordinary\npenetration and discretion. But wherever there is any doubt, it is\nalways the safer way to decide in favour of another's interest, than\nto follow the bent of our own inclination. \"Suffer the tares to grow,\n_says our divine teacher_, least in rooting up the tares you root up\nthe wheat also.\"\n\nThe general destruction, which the Almighty, in right of his supreme\nMajesty, has sometimes decreed and executed, is not a rule, which we\ncan presume to follow. He has not invested men, in the exercise of\npower, with those transcendent sovereign rights. Yet he himself,\nnotwithstanding the unchangeable nature of his sovereign will, was\ninclined to spare the most wicked cities, if ten righteous persons\ncould be found therein. Examples like these may furnish us with rules\nto decide, how far the rights of war against an enemy may be exercised\nor relaxed.\n\nV. It frequently occurs as a matter of inquiry, how far we are\nauthorised to act against those, who are neither enemies, nor wish to\nbe thought so, but who supply our enemies with certain articles. For we\nknow that it is a point, which on former and recent occasions has been\ncontested with the greatest animosity; some wishing to enforce with\nall imaginary rigour the rights of war, and others standing up for the\nfreedom of commerce.\n\nIn the first place, a distinction must be made between the commodities\nthemselves. For there are some, such as arms for instance, which are\nonly of use in war; there are others again, which are of no use in\nwar, but only administer to luxury; but there are some articles, such\nas money, provisions, ships and naval stores, which are of use at all\ntimes both in peace and war.\n\nAs to conveying articles of the first kind, it is evident that any\none must be ranked as an enemy, who supplies an enemy with the means\nof prosecuting hostilities. Against the conveyance of commodities of\nthe second kind, no just complaint can be made.--And as to articles of\nthe third class, from their being of a doubtful kind, a distinction\nmust be made between the times of war and peace. For if a power cannot\ndefend itself, but by intercepting the supplies sent to an enemy,\nnecessity will justify such a step, but upon condition of making\nrestoration, unless there be some additional reasons to the contrary.\nBut if the conveyance of goods to an enemy tends to obstruct any\nbelligerent power in the prosecution of a lawful right, and the person\nso conveying them possesses the means of knowing it; if that power, for\ninstance, is besieging a town, or blockading a port, in expectation of\na speedy surrender and a peace, the person, who furnishes the enemy\nwith supplies, and the means of prolonged resistance, will be guilty\nof an aggression and injury towards that power. He will incur the\nsame guilt, as a person would do by assisting a debtor to escape from\nprison, and thereby to defraud his creditor. His goods may be taken by\nway of indemnity, and in discharge of the debt. If the person has not\nyet committed the injury, but only intended to do so, the aggrieved\npower will have a right to detain his goods, in order to compel him to\ngive future security, either by putting into his hands hostages, or\npledges; or indeed in any other way. But if there are evident proofs\nof injustice in an enemy's conduct the person who supports him in such\na case, by furnishing him with succours, will be guilty not barely of\na civil injury, but his giving assistance will amount to a crime as\nenormous, as it would be to rescue a criminal in the very face of the\njudge. And on that account the injured power may proceed against him as\na criminal, and punish him by a confiscation of his goods.\n\nThese are the reasons, which induce belligerent powers to issue\nmanifestoes, as an appeal to other states, upon the justice of their\ncause, and their probable hopes of ultimate success. This question has\nbeen introduced under the article, which refers to the law of nature,\nas history supplies us with no precedent to deduce its establishment\nfrom the voluntary law of nations.\n\nWe are informed by Polybius, in his first book, that the Carthaginians\nseized some of the Romans, who were carrying supplies to their enemies,\nthough they afterwards gave them up, upon the demand of the Romans.\nPlutarch says that when Demetrius had invested Attica, and taken the\nneighbouring towns of Eleusis and Rhamnus, he ordered the master and\npilot of a ship, attempting to convey provisions into Athens, to be\nhanged, as he designed to reduce that city by famine: this act of\nrigour deterred others from doing the same, and by that means he made\nhimself master of the City.\n\nVI. Wars, for the attainment of their objects, it cannot be denied,\nmust employ force and terror as their most proper agents. But a doubt\nis sometimes entertained, whether stratagem may be lawfully used in\nwar. The general sense of mankind seems to have approved of such a\nmode of warfare. For Homer commends his hero, Ulysses, no less for\nhis ability in military stratagem, than for his wisdom. Xenophon, who\nwas a philosopher as well as a soldier and historian, has said, that\nnothing can be more useful in war than a well-timed stratagem, with\nwhom Brasidas, in Thucydides agrees, declaring it to be the method from\nwhich many great generals have derived the most brilliant reputation.\nAnd in Plutarch, Agesilaus maintains, that deceiving an enemy is both\njust and lawful. The authority of Polybius may be added to those\nalready named; for he thinks, that it shews greater talent in a general\nto avail himself of some favourable opportunity to employ a stratagem,\nthan to gain an open battle. This opinion of poets, historians, and\nphilosophers is supported by that of Theologians. For Augustin has\nsaid that, in the prosecution of a just war, the justice of the cause\nis no way affected by the attainment of the end, whether the object\nbe accomplished by stratagem or open force, and Chrysostom, in his\nbeautiful little treatise on the priestly office, observes, that the\nhighest praises are bestowed on those generals, who have practised\nsuccessful stratagems. Yet there is one circumstance, upon which the\ndecision of this question turns more than upon any opinion even of the\nhighest authority, and that is, whether stratagem ought to be ranked as\none of those evils, which are prohibited under the maxim OF NOT DOING\nEVIL, THAT GOOD MAY ENSUE, or to be reckoned as one of those actions,\nwhich, though evil IN THEMSELVES, may be so modified by particular\noccasions, as to lose their criminality in consideration of the good,\nto which they lead.\n\nVII. There is one kind of stratagem, it is proper to remark, of a\nnegative, and another of a positive kind. The word stratagem, upon the\nauthority of Labeo, taken in a negative sense, includes such actions,\nas have nothing criminal in them, though calculated to deceive, where\nany one, for instance, uses a degree of dissimulation or concealment,\nin order to defend his own property or that of others.[58] So that\nundoubtedly there is something of harshness in the opinion of Cicero,\nwho says there is no scene of life, that will allow either simulation,\nor dissimulation to be practised. For as you are not bound to disclose\nto others all that you either know or intend; it follows that, on\ncertain occasions, some acts of dissimulation, that is, of concealment\nmay be lawful. This is a talent, which Cicero, in many parts of his\nwritings, acknowledges that it is absolutely necessary for statesmen\nto possess. The history of Jeremiah, in the xxxviiith chapter of his\nprophecy, furnishes a remarkable instance of this kind. For when that\nprophet was interrogated by the king, respecting the event of the\nsiege, he prudently, in compliance with the king's orders, concealed\nthe real matter from the nobles, assigning a different, though not a\nfalse reason for the conference, which he had had. In the same manner,\nAbraham called Sarah, his sister, an appellation used familiarly\nat that time to denote a near relation by blood, concealing the\ncircumstance of her being his wife.\n\nVIII. A stratagem of a positive kind, when practised in actions, is\ncalled a feint, and when used in conversation it receives the name of\na lie or falsehood. A distinction is made by some, between these two\nkinds of stratagems, who say, that words are signs of our ideas, but\nactions are not so. But there is more of truth in the opposite opinion,\nthat words of themselves unaccompanied by the intention of the speaker,\nsignify nothing more than the inarticulate cries would do of any one\nlabouring under grief, or any other passion: which sounds come under\nthe denomination of actions, rather than of speech. But should it be\nsaid that being able to convey to others the conceptions of his mind,\nby words adapted to the purpose, is a peculiar gift of nature, by which\nman is distinguished from other parts of the animated creation, the\ntruth of this cannot be denied.\n\nTo which we may add that such communication may be made not only by\nwords, but by signs or gestures, like those used to the dumb; it\nmakes no difference, whether those signs or gestures have any natural\nconnection with the thing they are intended to signify, or whether\nsuch a connection is only assigned to them by custom. Equivalent to\nsuch signs or gestures is handwriting, which may be considered, as a\ndumb language, deriving its force not merely from the words used, and\nthe particular form of the letters, but from the real intention of\nthe writer, to be gathered from thence:--to be gathered either from\nthe resemblance between the characters and the intentions, as in the\nEgyptian hieroglyphics, or from pure fancy, as among the Chinese.\n\nHere likewise another distinction is necessary to be applied in the\nsame manner, as was done before, in order to remove all ambiguity in\nusing the term of THE LAW OF NATIONS. For it was there said, that the\nlaws established by independent and separate states, whether or no\nthose laws implied any mutual obligations, were denominated the LAW\nOF NATIONS.[59] So that words, gestures, and signs, made use of to\nconvey a meaning, imply an obligation, in all the persons concerned, to\nreceive and employ them in their common acceptation. But the employment\nof OTHER MEANS, coming under NONE OF THOSE DESCRIPTIONS, cannot be\nconstrued into a violation of any social contract, although some may\nbe deceived thereby. It is the REAL NATURE of the actions that is here\nspoken of, and not the ACCIDENTAL circumstances attending them: such\nactions for instance, as occasion no mischief; or if they do so, there\nis no guilt, where there is no treacherous design.\n\nWe have an instance of the former kind in the conduct of our Saviour,\nwho, on the way to Emmaus, pretended to the disciples, that he was\ngoing further; here was a harmless stratagem, unless we interpret the\nwords, as expressive of his intention to have gone further, if he had\nnot been prevented by their efforts and entreaties to detain him. And\nin another part of the sacred history it is said, that he intended\nto have passed by the Apostles on the sea, that is, he intended to\nhave done it, had he not been so earnestly importuned by them to go\ninto the ship. There is another instance too in the conduct of Paul,\nwho circumcised Timothy, though he knew the Jews would conclude from\nthence, that the ordinance of circumcision, which in reality had been\nabolished, was still binding upon the descendants of Israel, and that\nPaul and Timothy were of the same opinion. Whereas Paul had no such\nintention, but only hoped, by that means, to open for himself and\nTimothy a way to more familiar intercourse with the Jews. Neither could\nan ordinance of that kind, when the divine obligation was repealed, any\nlonger be deemed of such importance, nor could the evil of a temporary\nerror, resulting from thence, and afterwards to be corrected, be\nregarded as equivalent to the opportunity, which Paul thought to gain,\nof making it conducive to the introduction of Christian truth.\n\nThe Greek Fathers have given the name of ECONOMY, or MANAGEMENT\nto stratagems of this kind. On this subject there is an admirable\nsentiment in Clement of Alexandria, who, in speaking of a good man,\nsays that \"he will do many things for the benefit of his neighbour\nalone, which he would not otherwise have undertaken.\"\n\nOne of these stratagems was practised by the Romans, who, during the\ntime that they were besieged in the Capitol, threw some loaves of\nbread into the enemy's camp, that it might not be supposed they were\npressed by famine. The feigned flight, which Joshua ordered his people\nto make, to assist him in his designs upon Ai, affords an instance of\na stratagem of the second kind; the ensuing mischiefs of which may be\nconsidered, as some of the effects of lawful war. The ORIGINAL DESIGN\nof that pretended flight does not at all affect the question. The\nenemy took it for a proof of fear; and he was at liberty to do so,\nwithout debarring the other of his right to march this way, or that,\nwith an accelerated or retarded motion, with a shew of courage, or an\nappearance of fear, as he might judge it most expedient.\n\nHistory furnishes us with innumerable examples of deceptions practised\nwith success upon an enemy, by assuming his arms, ensigns, colours, or\nuniforms; all which may be justified upon the same principle. For all\nthese are actions, which any one may avail himself of at his pleasure,\nby departing from the usual course of his military system. For such\npoints of discipline and system depend upon the will and fancy of the\nmilitary commanders in each state, rather than upon any invariable\ncustom, equally binding upon all nations.\n\nIX. Those signs, by which the daily intercourse of life is maintained,\nform a subject of more weighty discussion, with which the consideration\nof lies or falsehood is necessarily interwoven.\n\nAll stratagems of this kind are so direct a violation of all moral\nprinciple, both in their nature and consequences, that almost every\npage of the revealed will of God declares their condemnation. Solomon\ndescribes a righteous, that is, a good man, as one, who holds every\nfalse word in detestation, deprecating the least appearance of\ndeception: and the Apostle's injunction accords with these sentiments,\ninstructing his disciples not to lie to one another.\n\nNor is it in the high standard of perfection alone, which the divine\nrecords present, that such a recommendation of fair, open, and sincere\ndealing is to be found. It is the theme of praise with poets and\nphilosophers, and the angry hero of the Grecian poet declares, that\nhe detests the man, as an infernal being, who utters one thing with\nhis tongue, while he conceals another in his heart. But making some\nallowance for poetic fiction--we find even the grave, sober, and\ndiscerning, Stagirite describing falsehood, as a vile, and abominable\nrefuge, and painting truth as a lovely object, that must extort the\nwarmest praise.\n\nThese are all great and high authorities in favour of open dealing.\nYet there are names of no less weight, both among sacred and profane\nwriters, whose opinions are a vindication of stratagems, when used upon\nPROPER occasions. One writer speaks of a case, where stratagem may be\nused, even for the benefit of the person, on whom it is practised, and\nadduces the instances of a physician, who, by means of a deception,\novercame the perverseness of a patient, and wrought a salutary cure.\n\nX. To reconcile such a variety of discordant opinions, it may be\nnecessary to devise some way of examining falsehood both in its more\nextensive, and more confined acceptation. Nor is speaking an untruth,\nUNAWARES, to be considered in the nature of a lie, but the falsehood,\nwhich comes within the limits here defined, is the KNOWN and DELIBERATE\nUTTERANCE of any thing contrary to our real conviction, intention, and\nunderstanding.\n\nWords, or signs, importing the same meaning as words, are generally\ntaken for conceptions of the mind, yet it is no lie for any man to\nutter a falsehood, which he believes to be true; but the propagation\nof a truth, which any one believes to be false, IN HIM amounts to a\nlie. There must be in the use of the words therefore an INTENTION to\ndeceive, in order to constitute a falsehood in the proper and common\nacceptation. Consequently, when any one single word, or the whole\ntenour of a discourse, admits of more significations than one, either\nby the use of some popular phrase, some term of art, or intelligible\nfigure of speech, in that case if the speaker's intention correspond\nwith any one of those meanings, he cannot be charged with using\nfalsehood, although it is possible that a hearer may take his words in\na very different sense. It is true that using such an ambiguous method\nof speaking on ALL OCCASIONS is not to be approved of, though there\nare particular circumstances under which it may be reconciled with\nhonour and justice. In communicating knowledge, for instance, there\nis no harm in using a metaphor, an irony, or an hyperbole, figures of\nspeech, tending either to adorn or to elucidate a subject. There are\ncases too, where by this doubtful mode of expression it may be proper\nto avoid an urgent and impertinent question. There is an instance of\nthe former kind in our Saviour's saying, that \"our friend Lazarus\nsleepeth,\" where the disciples understood him, as if he were speaking\nof the refreshing rest of an ordinary sleep: and when he spoke of\nrestoring the temple, which he meant his own body, he knew that the\nJews applied what he said to the MATERIAL EDIFICE of the Temple. In the\nsame manner he frequently addressed the multitudes in parables, which\nthey could not understand by barely hearing, without that docility\nof mind, and attention, which the subject required. Profane history\ntoo furnishes us with an example of the second kind, in the conduct\nof Vitellius, who, as Tacitus informs us, gave Narcissus doubtful and\nambiguous answers, in order to avoid his urgent questions; as any\nexplicit declaration might have been attended with danger.\n\nOn the other hand, it may happen to be not only censurable, but even\nwicked to use such a manner of speaking, where either the honour of God\nor the welfare of mankind is concerned, or indeed any matter, which\ndemands explicit avowals, and open dealing. Thus in contracts every\nthing necessary to their fulfillment ought to be fully disclosed to\nthose concerned. There is an apposite expression of Cicero, who says,\nthat every degree of deception ought to be banished from all contracts,\nand there is in the old Athenian Laws a proverb, conformable to this,\nwhich says, there must be nothing, but open dealing in markets.\n\nXI. In strictness of speech such ambiguity is excluded from the notion\nof a lie. The common notion of a lie therefore is something spoken,\nwritten, marked, or intimated, which cannot be understood, but in a\nsense different from the real meaning of the speaker. But a lie, in\nthis stricter acceptation, having some thing unlawful in its very\nnature, necessarily requires that a distinction should be made between\nit and that latitude of expression already explained. And if this\nacceptation be properly considered, at least according to the opinion\nprevailing in all nations, it seems, that no other explanation of it is\nnecessary to be given, except that it is a violation of the existing\nand permanent rights of the person, to whom a discourse, or particular\nsigns, are directed. It is a violation of the rights of ANOTHER; for\nit is evident, that no one can utter a falsehood with a view to impose\nupon himself. The rights here spoken of are peculiarly connected with\nthis subject. They imply that liberty of judgment, which men are\nunderstood, by a kind of tacit agreement, to owe to each other in their\nmutual intercourse. For this, and this alone is that mutual obligation,\nwhich men intended to introduce, as soon as they began to use speech,\nor other signs of equal import. For without such an obligation the\ninvention of those signs would have been perfectly nugatory. It is\nrequisite too, that at the time a discourse is made, such a right or\nobligation should remain in full force.\n\nA right may indeed have existed and afterwards have become obsolete,\nowing to the rise or occurrence of some new right: which is the case\nwith a debt, that may be released by acquittance, or non-performance of\na condition. It is farther requisite, to constitute a VIOLATION OF THIS\nRIGHT, that the ensuing injury should immediately affect the PERSON\nADDRESSED: as in contracts, there can be no injustice, but what affects\none of the parties, or persons concerned.\n\nAnd perhaps under the head of this right, it may not be improper to\nassign a place to that TRUE SPEAKING, which Plato, following Simonides,\nclasses with justice, in order to form a more striking contrast with\nthat falsehood, so often prohibited in Scripture, by the name of false\nwitness to, or against, our neighbour, and which Augustin, in defining\na lie, calls an intention to deceive. Cicero also in his offices lays\ndown truth, as the basis of justice.\n\nThe right to a discovery of the whole truth may be relinquished by the\nexpress consent of the persons, who are engaged in a treaty: the one\nmay declare his intention not to disclose certain points, and the other\nmay allow of this reserve. There may be also a tacit presumption, that\nthere are just reasons for such reserve which may perhaps be necessary\nout of regard to the rights of a third person: rights which, in the\ncommon judgment of all sober men, may be sufficient to counterbalance\nany obligation in either of the persons engaged in the treaty to make\na full disclosure of his views and sentiments.--These principles,\nduly considered, will supply many inferences to reconcile any seeming\ncontradiction in the opinions, that have been advanced.\n\nXII. In the first place, many things may be said to madmen, or\nchildren, the LITERAL MEANING of which may not be true, without\nincurring the guilt of wilful falsehood. A practice which seems to be\nallowed by the common sense of all mankind. Quintilian, speaking of the\nage of puerility, says, it is a period of life, when many useful truths\nmay be taught in the dress of fiction.--Another reason given is, that\nas children and madmen possess no perfect power of judging, impositions\nof that kind can do no injury to their rights, in such respects.\n\nXIII. Secondly, when a conversation is addressed to any one, who is not\nthereby deceived, although a third person, not immediately addressed,\nmay misconceive the matter, there is no wilful falsehood in the case.\nNo WILFUL FALSEHOOD towards the person addressed: because he feels no\ngreater injury from thence, than an intelligent hearer would do from\nthe recital of a fable, or the use of a metaphor, irony, or hyperbole\nin speech. It cannot be said that an injury is done to the person,\nwho accidentally and cursorily hears a matter, and misconceives it:\nfor being no way concerned, there is no obligation due to him. As\nhe misconceives a thing addressed to ANOTHER, and not to HIMSELF,\nhe must take upon his own head all the consequences of the mistake.\nFor, properly speaking, the discourse, WITH RESPECT TO HIM, is no\ndiscourse, but an inexpressive sound that may signify one thing as well\nas another. So that there was nothing wrong in the conduct of Cato the\nCensor, who made a false promise of assistance to his confederates, nor\nin that of Flaccus, who informed others that Aemilius had taken the\nenemy's city by storm, although the enemy were deceived by it. Plutarch\nmentions an instance of the same kind in the life of Agesilaus. Here no\ncommunication was made to the enemy, and the prejudice he sustained was\nan accidental thing no way unlawful in itself, either to be wished for\nor procured.\n\nXIV. In the third place, whenever it is certain that the person, on\nwhom a deception is practised, discovers that the intent of it was to\ndo him a service; he will not feel it as a grievance, nor can it come\nunder the strict denomination of a lie or falsehood. It will be no\nmore an INJURY, than it would be a THEFT in any one, presuming upon an\nowner's consent, to take something belonging to that owner, in order\nto convert it to his use in a very beneficial way. For in cases of\nnotorious certainty, a PRESUMPTION may be taken for express consent.\nBut it is evident that no man would CONSENT to receive an INJURY.\n\nFrom hence it appears, that a person is guilty of no treachery, who\nuses unfounded or fictitious motives to console a friend in distress,\nas Arria did to Paetus upon the death of his son, of which there is\nan account in Pliny's Epistles, or in a general, who in a perilous\nsituation should avail himself of false intelligence, to encourage his\ntroops, by which perhaps a victory might be gained.\n\nIt may be observed likewise, that the injury done to the freedom of\njudgment is, in such a case, of less consequence, because it is but\nmomentary, and the real fact is soon discovered.\n\nXV. There is a fourth case, which bears a near affinity to those\nabove mentioned, and that is, when any one, possessing pre-eminent\nauthority, orders another, in a subordinate capacity, to execute some\ndevice or stratagem, conducive either to his individual, or to the\npublic welfare. Which Plato seems to have had particularly in view,\nin allowing those in authority to avail themselves of pretexts, or\nstratagems. The same writer is very correct in his notion of not making\nsuch a device a characteristic of that authority, which belongs to the\nsupreme being. For all such devices, however justifiable they may be in\nCERTAIN CASES, strongly betray that imperfection, which is inseparable\nfrom all human systems.\n\nThe stratagem, which Joseph employed to obtain further discoveries\nwithout making himself known to his brethren, is much commended by\nPhilo, as a mark of great policy, when, contrary to the convictions\nand feelings of his own mind, he accused them of being spies, and\nafterwards charged them with theft. It was by a stratagem of the same\nkind, that Solomon gave proof of his inspired wisdom, when he used the\nFICTITIOUS threat of dividing the living child in order to discover the\nreal mother.\n\nXVI. The fifth case, which allows a stratagem to be practised, is\nthat, where it may be the ONLY means of saving the life of an innocent\nperson, of obtaining some object of equal importance, or of diverting\nanother from the perpetration of some horrid design. The heathen\npoet has given a beautiful illustration of this in his praises of\nHypermnestra, whose conduct he calls \"a splendid stratagem, ennobling\nthe virgin to all posterity.\"\n\nXVII. It is evident that many writers of acknowledged wisdom, and sober\njudgment, have carried the point farther than has been done in this\ntreatise, in allowing the use of false representations to an enemy. In\ncases, where public enemies are concerned, they maintain, that it is\nlawful to deviate from those strict rules of avowing and disclosing\nall our intentions, which they prescribe, on all other occasions. Such\nis the opinion of Plato and Xenophon among the Greeks, of Philo among\nthe Jews, and Chrysostom among Christians. It may not perhaps be amiss\nto cite, in this place, the message sent by the men of Jabesh Gilead\nto the Ammonites, by whom they were besieged, and also that of the\nprophet Elisha, and at the same time to mention the conduct of Valerius\nLaevinus, who boasted of having killed Pyrrhus.\n\nThe third, the fourth and fifth observations above made, may be\nillustrated from what is said by Eustratus, Archbishop of Nice, \"An\nable and upright counsellor is not obliged to disclose the whole\ntruth: for there may be occasions, when it may be necessary for him to\nrecommend the means of deceiving an enemy, or to employ some stratagem\ntowards a friend, where it may turn to his advantage.\"\n\nXVIII. What has been said of false speaking must be understood as\napplied to affirmative declarations, which can be prejudicial to no\npersons, but public enemies: it can by no means be taken to include\npromises. For promises confer upon the person, to whom they are made,\na peculiar right to claim their full performance. And this is a rule,\nwhich must take place, even between public enemies; a rule to which\nexisting hostilities are not allowed to form an exception. It is a\nmaxim proper to be enforced in TACIT, as well as in EXPRESS agreements:\nas when a parley or conference is demanded, there is always an IMPLIED\npromise, that both sides shall attend it with perfect safety. But these\nare points reserved for the discussion of another part of this treatise.\n\nXIX. It will be necessary to repeat an observation made before, with\nrespect to oaths, both of the affirmative and promissory kind, where\nit was maintained that they exclude all exceptions, all mental\nreservations towards the person, to whom they are made, being regarded\nnot merely as a solemn transaction with that individual, but as a\nstedfast appeal to God. Such an appeal to the supreme being demands the\nperformance of an oath, even if it gave the individual no right to the\nsame.\n\nAt the same time it was observed, that a sworn declaration is not like\none of any other kind, where an application of terms different from\ntheir usual meaning may supply the speaker with an excuse for evading\ntheir import. But truth requires every declaration and promise to be\nmade in terms, which it is supposed that every man of integrity and\nclear judgment will understand, spurning at the impious thought, that\nmen may be deceived by oaths, as children are by toys and trifles.\n\nXX. Some nations and individuals indeed have rejected the use of those\nstratagems, which even the law of nature allows to be employed as a\nmeans of self-defence against an enemy. But they did so, not from any\nopinion of their unlawfulness, but from a noble loftiness of mind,\nand from a confidence in their own strength. Aelian has preserved\na saying of Pythagoras, \"that there are two things, in which man\napproaches nearest to God, in always speaking the truth, and doing good\nto others.\" Aristotle, somewhere in his Ethics, calls speaking truth,\nthe freedom of a great soul, and Plutarch says, that falsehood is the\nqualification of a slave. But an adherence to truth, in simplicity of\nheart, is not the only duty required of Christians, in this respect,\nthey are commanded to abstain from all vain discourse, as having for\ntheir example him, in whose mouth there was found no guile.\n\nXXI. With respect to the actions of men, there is another rule which\nmay properly come under this head, and that is, the unlawfulness of\nurging or persuading any one to do an unlawful act. For instance, no\nsubject has a right to lift his hand against his sovereign, to deliver\nup a town without public authority, or to despoil his neighbour of his\ngoods. It would be unlawful then to encourage the subject of an enemy,\nas long as he continues his subject, to do any of these acts. For the\nperson, who urges another to do a wicked act, makes himself a partner\nin his guilt. Nor can it be received as a just answer, that urging\na subject to the perpetration of such a deed is nothing more than\nemploying the lawful means of destroying an enemy. For though it may\nbe necessary and just to destroy him, if possible, yet that is not the\nway, in which it should be done. Augustin has well observed, that it\nmakes no difference whether any one should commit a crime himself, or\nemploy another as his instrument.\n\nBut employing the spontaneous offers of a deserter is not contrary to\nthe laws of war, and is a very different action from that of seducing a\nsubject from his allegiance.\n\n[Illustration: _WAR AND PEACE_\n\n _This is a frontispiece to a Latin edition of Grotius' De Jure Belli\n ac Pacis, published at Amsterdam in 1670. It is intended to be\n symbolical of War and Peace acting under the direction Justice,\n these three figures forming the central group._\n]\n\n\n\n\nCHAPTER II.\n\nIN WHAT MANNER THE LAW OF NATIONS RENDERS THE PROPERTY OF SUBJECTS\nANSWERABLE FOR THE DEBTS OF SOVEREIGNS. THE NATURE OF REPRISALS.\n\n No one but an heir bound by the act of another--Property of subjects\n answerable for the debts of sovereigns, according to the law\n of Nations--Capture of persons and property after satisfaction\n refused by the aggressor--Reprisals--Personal safety of\n subjects--Distinction made by the law of Nations in this respect.\n\n\nI. The rights accruing from the law of Nations are the points next to\nbe considered, which may be referred either to wars in GENERAL, or to\nthose of a PARTICULAR description.\n\nWars in GENERAL are those, which properly first come under notice.\n\nBy the LITERAL law of nature, no one is bound by the actions of\nanother, except the person, who succeeds to his property. For the\nintroduction and establishment of property introduced and established\nalso the power of transferring it with all its incumbrances. The\nEmperor Zeno however pronounces it repugnant to natural justice for\none man to be molested for the debts of another. A principle, which\ngave rise to the distinctions in the Roman law, that the wife could\nnot be sued for her husband, nor the husband for his wife, nor a son\nfor his father, nor a father or mother for their son. Nor, as Ulpian\nclearly states it, could individuals be answerable for the debts of\nthe community, and more especially if that community be possessed of\nproperty. Indeed if that were not the case individuals could only\nbe obliged to contribute their due proportion, as members of that\ncommunity.\n\nSeneca says, \"if any one lends money to my country, I am not to be\nconsidered as his debtor, nor to take the debt upon myself, though I am\nbound to pay my due proportion of it.\" There was a special provision\nmade in the Roman law, that one peasant should not be bound for the\ndebts of another, and it is laid down as a rule, that the goods of\none person shall not be distrained for the debts of another, even if\nthey be public debts; and in Justinian's Novels, pledges for others are\nforbidden, and the cause assigned for it is, because it is unreasonable\nthat one person should incur the debt, and another be bound to the\npayment of it, an exaction to which the name of ODIOUS is given. King\nTheodoric Cassiodor, calls it a shocking licence for one man to be\ndetained as a pledge for another.\n\nII. Although in the preceding observations there may be a great deal of\ntruth, yet it is possible, and indeed appears actually to be the case,\nthat the voluntary law of nations introduced the practice of rendering\nall the corporeal, and incorporeal property, belonging to the subjects\nof any state or sovereign, liable to the debts, which that state or\nsovereign may have incurred, either personally, or by refusing to make\nsuch reparation, as may be due for the injuries and aggressions, which\nthey have committed.\n\nYet this is a practice, which nothing but necessity could justify; for,\non any other ground, it would be opening a door to innumerable acts of\nwanton aggression and injustice against individuals. As the property of\nstates and sovereigns cannot often so easily fall into an enemy's hand,\nas that belonging to individuals, who are more numerous, and whose\nproperty is consequently more exposed. So that rights of this kind are\nto be reckoned among those, which Justinian says, are the offspring of\nstern necessity, the calamities of men driving them to the use of such\nmeans.\n\nBut though a practice like this owes its introduction to NECESSITY, it\nis not so far at variance with the law of nature, as to exclude CUSTOM\nand TACIT agreement from having some share in its establishment. For we\nfind that sureties are bound by no other tie, but that alone of having\ngiven their consent. Besides, it might easily be supposed, that it\nwas the best method of redress against the subjects of another state,\nwhere the aggrieved persons could not so easily prosecute their rights,\nor obtain indemnities, the claims or injuries of strangers being but\nlittle understood, and perhaps still less regarded in a foreign land.\n\nSubjects, being thus liable to the loss of their property, by the\nconduct of their fellow subjects, or by that of the state, might\nsometimes feel it a hardship, while on other occasions, it would\nprove their greatest security against aggressions from the subjects of\nanother power.\n\nThat this was a received custom appears not only from the regular\nwars, carried on by one state against another, the rules observed in\nwhich are often named in the manifestoes issued on such occasions:\nthe form of which may be seen in the first book of Livy, where it is\nsaid, \"I declare war against the ancient nations of the Latins, and\nlikewise against the respective individuals\"; and the same writer, in\nhis thirty first book, informs us, that, upon the question being put\nto the people, they were asked, whether it was their pleasure that\nwar should be declared against Philip, and against the Macedonians,\nhis subjects.--But the same custom also prevailed, even before the\ncommencement of actual and open hostilities between two states, when\nmutual acts of aggression by the subjects of each power could be\nregarded as nothing but the eve, and prelude to a declaration of war.\nThe words used by Agesilaus to Pharnabazus will serve to elucidate\nthis point: he said; \"While we were friends to the king of Persia, we\ntreated him and his subjects in a friendly manner: now we are enemies,\nyou can expect nothing from us but hostilities. Therefore, Pharnabazus,\nwhile you chuse to continue a vassal to the King, we wound him through\nyour sides.\"\n\nIII. The Athenians had a method somewhat like this of seeking redress,\nwhich they called \u1f00\u03bd\u03b4\u03c1\u03bf\u03bb\u03b7\u03c8\u03b9\u03b1 {androl\u00eapsia}, a seizure of men's persons,\nwhich was laid down in the Attic law in the following terms, \"if any\none has been murdered in a foreign country, the nearest relatives\nof the deceased are authorized to seize any three subjects of that\ncountry, but not more than three, till the perpetrators of the deed be\npunished, or at least delivered up to the hands of justice for that\npurpose.\"\n\nIn this case we find that the personal liberty of subjects, which may\nbe considered as a kind of incorporeal right, including the right of\nresiding where they please, or doing whatever they may think proper, is\nmade answerable for the debt of the state, who is bound to punish the\ncriminal acts of her subjects: so that the subject suffers constraint,\ntill the state has discharged the debt, which it is bound to pay; and\nby the payment of this debt is meant the punishment of the guilty. For\nalthough the Egyptians, as we learn from Diodorus Siculus, maintained\nthat neither the person, nor liberty of any one ought to be bound or\nconstrained for a debt, there is nothing in it repugnant to the law\nof nature, and by the practice not only of the Greeks, but of other\nnations, the opposite opinion seems to have been established.\n\nAristocrates, who was contemporary with Demosthenes had made a motion\nfor a decree, that if any one killed Charidemus, it might be lawful\nto seize him, wherever he was to be found, and that any one, who\nattempted to rescue that person, should be deemed an enemy. Demosthenes\nfinds fault with many parts of this decree. For in the first place,\nAristocrates had omitted making a proper distinction between murder and\na lawful putting to death, the latter of which is an act of justice:\nin the next place, he has said nothing of bringing the person to a\nregular trial: besides, it was not the persons, among whom the murder\nhad been committed, but those who afterwards received the murderer,\nthat were to be declared enemies. Demosthenes says, that \"the regular\nlaw prescribes, that if the persons in whose district a murder has\nbeen committed, neither punish, nor deliver up the perpetrator of the\ncrime, three of their people shall be liable to be seized. But this\ndecree, allowing the persons in whose district it has been committed to\nescape with impunity, not even naming THEM, passes sentence upon those,\nwho in conformity to the common laws of humanity have received the\nfugitive, if they do not deliver him up, which would be a breach of the\nprotection due to a suppliant.\"\n\nThe fourth point, in which he blames Aristocrates, is for having\ncarried matters to the extremities of open and actual war, in a case,\nwhere the law only authorized the seizure and detention of particular\npersons. Of these arguments, the first, the second, and the fourth,\nare by no means destitute of weight. But the third argument, unless it\nbe confined entirely to the circumstance of accidental death, or that\nnecessarily occasioned by defending one's self, may be regarded more\nas an oratorical flourish than a just and solid reason. For the law of\nnations extends the privileges, and character of suppliants to those\nonly, who have left their country on account of misfortune, and not\nowing to crimes. Indeed if the law of nations made no such distinction,\nthe persons, among whom a crime has been committed, and who may be\nsuspected of having countenanced the deed, and those who barely refuse\nto punish or deliver up the guilty fugitive, would be upon an equal\nfooting as to right. So that it was either USAGE, which GRADUALLY\nintroduced the above interpretation of that law, to which Demosthenes\nappeals, or it was afterwards more EXPRESSLY ESTABLISHED, in order\nto avoid such cavils. For no one can deny the truth of one of these\npositions who has attended to the observation of Julius Pollux, that\n\"the seizure and detainder of persons can be enforced, whenever a power\ncannot obtain the surrender of fugitive murderers, which they demand.\nIn this case the aggrieved power or individual may seize and detain any\nthree of the people belonging to the state, which refuses to make that\nsurrender.\"\n\nIt is upon the same principle that any power may detain the subjects of\nanother state, in order to procure the release of any subjects of her\nown, unjustly seized, and imprisoned by that state.\n\nIV. Another method of obtaining redress for any violation of persons,\nor property is by having recourse to what, in modern language, are\ncalled REPRISALS, which the Saxons and Angles denominated WITHERNAM,\nand to which the French gave the name of LETTERS OF MARQUE, and those\nwere usually obtained from the crown.\n\nV. It is generally understood that recourse may be had to this method\nof redress not only against a foreign aggressor, but also against a\ndebtor, if justice cannot be obtained in due time: but in NOTORIOUS\ncases, which admit of no doubt, this right may be enforced even beyond\nthe strict letter of the law. For even in DOUBTFUL matters, the\npresumption will always be in favour of judges appointed by public\nauthority. For it is unlikely that they should GREATLY, or WANTONLY\nexceed their power; especially when, if so inclined, they have not the\nsame means of enforcing their decrees against foreigners, as against\ntheir fellow subjects. Indeed even in disputes between subjects of\nthe same country, they cannot annul a just debt. PAULUS, the Lawyer,\nsays that a REAL DEBTOR, though discharged, owing to some informality\nor inability of the law to enforce payment, still remains a debtor\naccording to the law of nature.\n\nAnd when, in consequence of a judicial sentence, a creditor, under\npretext of seizing his own property, had taken from a debtor something\nwhich did not belong to him though it was in his possession: upon the\ndischarge of the debt, a doubt arising whether the thing should be\nrestored to the debtor, Scaevola maintained that it certainly ought to\nbe restored.\n\nThere is a difference between the two cases. For subjects, AS SUCH,\ncannot make any violent resistance to the execution of a sentence,\nwhich they may not deem satisfactory, nor can they prosecute any right\nin opposition to the law. FOREIGNERS may use violent means to enforce a\nright: tho' they are not justified in using such means, while there is\nany possibility of obtaining redress in a legal, and peaceable manner.\n\nIt is on such grounds that reprisals are made upon the persons and\nproperty of the subjects, belonging to a power, who refuses to grant\nredress and reparation for injuries and aggressions. It is a practice\nnot literally enacted by the law of nature, but generally received\nthrough custom. It is a practice too of the greatest antiquity: for in\nthe eleventh book of the Iliad, we find Nestor giving an account of\nthe reprisals, which he had made upon the Epeian nation, from whom he\ntook a great number of cattle, as a satisfaction for a prize which his\nfather Neleus had won at the Elian games; and for debts due to many\nprivate subjects of the Pylian kingdom. Out of this booty the king\nhaving selected his own due, equitably divided the rest among the other\ncreditors.\n\nVI. It has been a received opinion with many nations, that reprisals\nmight be made even upon the LIVES of innocent subjects, owing to the\nright, which it was supposed that every one had over his own life,\nand which might be transferred from the individual to the state. A\ndoctrine, which, as it was proved in the first book of this treatise,\ncan never be reconciled either to sound religion or morality. Indeed\na person may ACCIDENTALLY, though not INTENTIONALLY be killed by us\nin attempting to prevent him from violently obstructing us in the\nprosecution of a lawful right. Yet if such an accidental calamity could\nbe foreseen, the law of charity, setting so pre-eminent a value upon\nthe life of man, would in such a case prescribe the forbearance of our\nright.\n\nVII. But on this, as well as other points, we must take care not to\nconfound the natural and fundamental law of nations, with the civil and\nconventional law of particular states.\n\nBy the law of nations all the permanent subjects, both natives and\nsettlers, of an offending state or sovereign are liable to suffer\nreprisals: but the same rule does not bind those, who are passing\nthrough a country, or only residing in it for a time. For such\nreprisals are a kind of pledges, like public burdens, made answerable\nfor the public debts, from which foreigners, being temporary residents,\nthough owing obedience to the laws, are totally exempt.\n\nIn the same manner, Ambassadors, but not those sent from an enemy to\nour enemies, and their property, are exempt from such conditions by the\nlaw of nations. By the CIVIL LAW too of many countries an exception is\nmade in favour of women and children, of men of letters, and those who\nare travelling for the purposes of trade. But by the law of NATIONS\nthe goods of all are liable to reprisals, as was the case at Athens,\nrespecting the seizure of persons. In many places, by the civil law,\nthe right of making reprisals is obtained of the sovereign, and in\nothers, of the judges.\n\nBy the law of nations the property of all captures is devoted to\ndischarge the debt, and defray the expenses incurred, the remainder of\nwhich, after due satisfaction obtained, and peace concluded, should\nbe restored. By the civil law the persons interested are summoned\nto appear, the property is sold by public authority, and the money,\naccruing from thence, divided among all who are entitled to a share of\nthe same. But these and other points of the same kind are to be learned\nfrom civilians, who are conversant in such matters, and particularly\nfrom Bartolus, who has written upon reprisals. This subject may be\nclosed with one observation, that will in some measure tend to soften\nthe rigour of this stern, but necessary right, and that observation\nis, that such as by not discharging a debt, or granting redress, have\noccasioned reprisals to be made, are bound, in justice and honour, to\nmake good the losses of those, who have thereby suffered.\n\n\n\n\nCHAPTER III.\n\nON JUST OR SOLEMN WAR ACCORDING TO THE LAW OF NATIONS ON DECLARATIONS\nOF WAR.\n\n Solemn war, according to the Law of Nations between different\n states--A people, though engaged in unjust war, to be\n distinguished from pirates and robbers--Change in the condition\n of belligerents--Formal war can be made by the Sovereign power\n alone--Declaration of war--The Law of Nature, Law of Nations,\n respecting the same--Declaration, conditional, absolute--Forms of\n declaration introduced by the civil law--War declared against a\n Sovereign includes his subjects, and allies--The reason why allies\n are included--Declarations, why necessary to establish certain\n effects--Whether actual warfare immediately follows a declaration,\n considered--Whether the violation of an Ambassador's rights to be a\n just ground of war.\n\n\nI. In the first book of this treatise it was observed, that according\nto the best writers, a war is defined to be just, not on account of the\nCAUSES solely, in which it originates, nor on account of the MAGNITUDE\nof its objects, but from certain, peculiar, effects of right, with\nwhich it is attended.\n\nBut to what kind of war such an appellation most duly belongs will be\nbest understood by considering the definition, which the Roman Lawyers\nhave given of a PUBLIC or NATIONAL enemy. \"Those, _says Pomponius_, are\nPUBLIC and LAWFUL ENEMIES, with whose STATE our own is engaged in war:\nbut enemies of every other description, come under the denomination of\npirates and robbers.\" With that opinion Ulpian entirely accords, making\nan additional observation, that \"if any one be taken by robbers, as he\nis not a lawful prisoner of war, he cannot claim of his own state the\nright of postliminium. But if he be taken prisoner by a public enemy of\nthe state, being considered as a prisoner of war, he is entitled by the\nright of postliminium to be restored to his former condition.\"\n\nThese opinions are supported by that of Paulus, who maintains, that\npersons captured by pirates still continue free, that is, are not to\nbe considered as prisoners, for whom an exchange may be demanded. So\nthat by the opinion of the Roman Lawyers it is evident, that no war\nis considered to be lawful, regular, and formal, except that which is\nbegun and carried on by the sovereign power of each country. Cicero, in\nhis fourth Philippic, describes \"a public and authorised enemy to be\nthe person, who possesses the civil and military powers of the state,\nwho can command the treasury, and the services of the people in support\nof his measures, and who, as occasions offer, has power to conclude\ntreaties of peace and amity.\"\n\nII. A state, though it may commit some act of aggression, or injustice,\ndoes not thereby lose its political capacity, nor can a band of pirates\nor robbers ever become a state, although they may preserve among\nthemselves that degree of subordination, which is absolutely necessary\nto the subsistence of all society. For with the latter, the commission\nof crime is the SOLE bond of union, whereas the former, though not\nalways free from blame, but occasionally deviating from the laws of\nnature, which in many cases have been in a great measure obliterated,\nstill regulate their conduct by the treaties, which they have made,\nand certain customs that have been established, being united among\nthemselves for the mutual support of lawful rights, and connected with\nforeign states by known rules of standing polity.\n\nThe Scholiast, upon Thucydides, remarks that the Greeks, at the time\nwhen piracy was reckoned lawful, forebore committing massacres, or\nnightly depredations, and carrying off the oxen that were necessary\nfor the plough. We are informed by Strabo, that other nations too, who\nlived by plunder, after they had returned home from their predatory\nvoyages, sent messages to the owners, whom they had plundered, to know\nif they would redeem the captures at a fair price.\n\nIn morals, the whole system often derives its name from some one of the\nprincipal parts, as Cicero remarks, in the fifth book of his BOUNDS\nof GOOD and EVIL, and Galen observes that a mixture is often called\nby the name of its chief ingredient. So that Cicero is not altogether\ncorrect in saying, that a state is not merely diseased, but entirely\ndestroyed, by the injustice of its component and leading members. For a\nmorbid body is still a body, and a state, though dreadfully diseased,\nis still a political being, as long as its laws and tribunals and other\nnecessary parts of its constitution remain, to administer justice and\ngive redress to foreigners, no less than to private subjects in their\nactions against each other.\n\nThere is a beautiful observation in Dion Chrysostom, who compares the\nlaw of a state, particularly that branch of it relating to the law of\nnations, to the body animated by the soul, upon the departure of which\nthe corporeal frame becomes a mass of lifeless clay: in the same manner\npolitical society cannot subsist without the guiding and controuling\nprinciple of law. Aristides, encouraging the Rhodians to harmony,\nobserves, that even under a tyrannical government many good laws may be\nfound.\n\nThese are points, which may be cleared up by examples. Thus Ulpian\nmaintains that those who are captured by pirates cannot be considered\nas prisoners of war: but if captured by the Germans, for instance,\nor any national enemy, they lose their liberty for a time. But the\nGermans, as we are informed by Caesar, thought acts of plunder, if\ncommitted in a foreign territory, no disgrace. Tacitus says that the\nCattians, a noble race of people in Germany, and the Garamantians were\naddicted to the same habits of plunder, yet still retained their rank\namong states.--Such is the difference between a national and political\nbody, and a band of men uniting together SOLELY FOR THE COMMISSION OF\nCRIMES.\n\nIII. A change may occur not only in the situations of individuals, as\nin those of Jephthah, Arsaces, and Viriatus, who, from being leaders\nof voluntary bands, became lawful commanders; but the same has also\nhappened with respect to whole communities, which being originally\ncomposed of nothing but freebooters have, by the gradual course and\nchanges of time, risen to the rank and dignity of states.\n\nIV. What has been said with respect to the right of making formal and\nlawful war, being vested in the sovereign power alone, includes those\nwho have any share in the sovereign power, as the different communities\nforming the States General of many commonwealths. The same rule will\nhold good of those, who are not SUBJECTS of a superior state, but\njoined to it in confederacy by an unequal treaty: innumerable instances\nof which are to be found in history. This was the case between the\nRomans and their allies, the Volscians, the Latins, and the Spaniards:\nand all whom we read of being engaged in wars, which were considered as\nlawful and just.\n\nV. But to make a war just, according to this meaning, it must not only\nbe carried on by the sovereign authority on both sides, but it must\nalso be duly and formally declared, and declared in such a manner, as\nto be known to each of the belligerent powers. Cicero, in the first\nbook of his offices, points out \"the equity of the rules prescribed\nby the Roman Law for the declaration of war, from whence it may be\nconcluded that no war is regular or just, but such as is undertaken to\ncompel restitution, and to procure indemnity for injuries, and that too\naccompanied with a formal declaration.\" Livy also in the same manner\ndeems an observance of these rules requisite to form the characteristic\nof a just war. And describing an incursion of the Acarnanians into\nAttica, and their ravaging the country, he says that \"those acts of\nirritation ended in a declaration of JUST and REGULAR war on both\nsides.\"\n\nVI. In order to understand all these points clearly respecting the\ndeclaration of war, an accurate distinction must be made between the\nprinciples, which are founded on the law of nature itself, and those,\nwhich, though not derived immediately from that source, are still found\nto be just: it will be necessary also to examine, what is required by\nthe law of nations towards obtaining, IN WAR, all the consequences,\nprivileges and effects of that law, and, at the same time, to\ninvestigate the consequences and rights arising from the peculiar laws\nand customs of particular nations.\n\nTo repel force, or to punish a delinquent, the law of nature requires\nno declaration. And, as Thucydides relates, Sthenelaidas, one of the\nEphori, maintains that \"where we have been injured, not by WORDS, but\nby ACTIONS, the matter cannot be decided by WORDS and FORMS.\" And\nAelian, after Plato, observes that it is not the declaration of the\nHerald, but the voice and law of nature, which proclaim war, undertaken\nto repel force. Hence Dion Chrysostom, in addressing the Nicomedians,\nsays that many wars are begun without any declaration.\n\nUpon the same ground Livy condemns the conduct of Menippus, a general\nbelonging to Antiochus for having killed some Roman citizens before\nany declaration of war had been made, or even before a sword had\nbeen drawn, or a drop of blood spilt, to shew that hostilities\nwere intended. By this objection he proves that either a formal\ndeclaration, or some act indicative of hostilities was deemed requisite\nto justify actual warfare.\n\nNeither, if we follow the law of nature, is there any more occasion for\nnotice or declaration, where an owner intends to lay hands upon HIS\nOWN PROPERTY. But whenever one thing is taken in return for another,\nor the property of a debtor is seized for the recovery of a debt, and,\nespecially, if any one intends seizing the property of those, who are\nsubjects to the debtor, a formal demand must be made, as a proof that\nrecourse to such security is the only means left of obtaining redress\nand satisfaction. Such a demand is necessary because that is not a\nPRIMARY and ORIGINAL right, but a SECONDARY right, SUBSTITUTED in the\nplace of the primary and original, by the artificial rules of civil law.\n\nIn the same manner to justify an attack upon a sovereign power for the\naggressions and debts of its subjects, a previous remonstrance, and a\nproper demand of justice must be made to that power. For it is only by\nrefusing to punish the guilty, or to grant indemnity to the injured,\nthat states or sovereigns can be implicated in the misconduct of their\nsubjects.[60] But even where the law of nature does not directly\nprescribe that such a remonstrance or demand should be made, yet the\ncommon principles of humanity and equity will recommend the[61] use\nof any means, that may prevent recourse to the calamities of war. The\ncommandment given by God to the Hebrews, to send a message of peace to\nany state or city, before they began an intended attack, was designed\nas a special command to that people, yet some have confounded it with\nthe general law of nations. For it was not ANY kind of peace that was\nmeant by that injunction, but only such a peace as imposed terms of\nSUBJECTION and TRIBUTE. We are informed by Xenophon, that when Cyrus\nwent into the country of the Armenians, he sent messengers to the king,\nto demand the tribute and number of troops, which had been stipulated\nby treaty.\n\nBut to obtain the peculiar rights and consequences resulting from the\nlaw of nations, a declaration of war by one of the parties, at least,\nif not by both, is absolutely requisite in all cases.\n\nVII. Those declarations are either conditional or absolute. A\nconditional declaration is that which is coupled with a demand of\nrestitution or redress. Under the name of restitution, the FECIAL LAW\nof Rome, that is the LAW RESPECTING DECLARATIONS OF WAR, comprehended\nnot only the claims, which OWNERSHIP established, but the prosecution\nof EVERY right arising from criminal or civil causes.\n\nHence the declarations were couched in terms, requiring restoration,\nsatisfaction, or surrender. Here, by the term, surrender, the party\nappealed to is understood to have the option either of punishing the\noffender, himself, or delivering him up to the aggrieved person. This\nmanner of demanding restitution is, according to the testimony of\nPliny, called CLARIGATION, that is, a LOUD and FORMAL DEMAND. Livy\ngives us an example of a conditional and qualified declaration, wherein\nthe aggrieved power denounces \"a determined resolution to prosecute\nher rights with the utmost violence, if the aggressor will not make\nreparation and atonement for the injury he has done.\" Tacitus also\nrelates the substance of a dispatch sent to Caecina by Germanicus,\nwherein he declares, that \"if the ringleaders of the mutinous and\nrebellious legions are not immediately punished, he will advance with\nhis army, and put the whole to the sword.\"\n\nAn ABSOLUTE declaration of war is issued, where any power has already\nbegun hostilities, or committed acts which call for exemplary\npunishment. Sometimes indeed a conditional, is followed by an absolute\nwar, though in such a case the latter is not actually necessary, but\nonly a confirmation of the former. This gave rise to the form, which\nsays, \"an appeal is hereby made against such a people, as unjust and\nrefusing to grant redress.\" There is another form also purporting,\nthat \"the principal herald of the Roman citizens has made known to the\nprincipal herald of the ancient Latins, and to the Latin people, that\nredress is demanded of them by just and lawful war, on account of all\nthe disputes which they have refused to settle, and the indemnities\nwhich they have been bound to grant, and have refused; and that this\nis the only means remaining to recover all that has been unjustly\ndetained.\" There is also a third mode of declaration, which runs in\nthe following tenour; \"Since the ancient people of the Latins have\ncommitted aggressions against the people of Rome, the people of Rome,\nwith the advice and consent of the senate, declare war against them,\nand in the name of the senate and people of Rome their purpose is thus\npublished.\"\n\nBut that in case of RENEWED wars such a declaration is not absolutely\nnecessary, appears from the circumstance of its being made in due form\nat the nearest garrison, and not PERSONALLY to the offender himself,\naccording to the answer given by the heralds, when they were consulted\nin the case of Philip of Macedon, and afterwards respecting Antiochus.\nWhereas a declaration for the FIRST time should be made to the enemy\nhimself. Indeed in the war against Pyrrhus the declaration was made\nto one of his soldiers, in the Flaminian Circus, where, as Servius\nobserves in his notes on the sixth book of the Aeneid, he was commanded\nto purchase a piece of ground, as a handle for dispute. A proof also\nthat IN SOME CASES a declaration is superfluous may be taken from the\ncircumstance that war is frequently declared by BOTH SIDES, which was\ndone by the Corcyraeans and Corinthians in the Peloponnesian war,\nthough a declaration by one of the parties would have been sufficient.\n\nVIII. As to the use of the caduceum, or staff with the figure of two\nsnakes twisted around it, which ambassadors carried, when they sued\nfor peace, it was a ceremony peculiar to the GREEKS, and not derived\nfrom the GENERAL law of nations. The ROMANS in the same manner had\nparticular customs, such as using vervain in forming alliances,\nthrowing a bloody spear, as a declaration of war, renouncing all\nformer friendship and alliance at the expiration of thirty days, after\nsatisfaction had been demanded and refused, and again throwing another\nspear. None of these PECULIAR customs ought to be confounded with the\nGENERAL law of nations. For Arnobius informs us, that in his time many\nof them had fallen into disuse, and even in the time of Varro some of\nthem were omitted. The third Punic war indeed was not declared till the\nmoment of its actual commencement.\n\nIX. A declaration of war, made against a sovereign, includes not only\nhis own subjects, but all who are likely to become his associates, as\nthereby they make themselves accessories in the war. And this is what\nthe modern lawyers mean, when they say that, in bidding defiance to\na Prince, we bid defiance to all his associates. For they give the\nname of defiance to a declaration of war. By which is understood the\nwar carried on with the power against whom it has been declared. Thus\nupon war being declared against Antiochus, there was no occasion for\na separate declaration against the Aetolians, who had openly joined\nAntiochus. For, as the heralds in their answer justly observed, the\nAetolians had, by that act, voluntarily brought war upon themselves.\n\nX. But if after the conclusion of such a war it should be deemed\nexpedient to attack any other nation or king for having furnished\nsupplies and assistance towards that war, a new declaration of war\nwill be necessary. For that nation or king is then to be considered,\nnot as an accessory, but as a principal enemy. And therefore it was\nwith reason said, that the war of Manlius against the Galatians, and\nthat of Caesar against Ariovistus, were not just wars according to the\nlaw of nations. For war was made upon them not as accessories, but as\nprincipals. So that for this purpose, as the law of nations would have\nrequired a declaration, in the same manner the Roman law would have\nrequired a new order of the Senate.\n\nFor on the motion being made for the war with Antiochus, the question\nwas also put, whether it should not at the same time be made with his\nadherents. The same rule also being observed against King Perseus, it\nmust be understood, as including the adherents during all the time that\nwar with those princes continued; and implicating all, who in reality\ngave them support.\n\nXI. The reason why a declaration is necessary to constitute what is\ndeemed, according to the law of nations, a just war, is not that which\nsome writers assign. For they allege that it is to prevent every\nappearance of clandestine and treacherous dealing: an openness, which\nmay be dignified with the name of magnanimity, rather than entitled a\nmatter of right. On this point, we are informed that some nations have\ngone so far, as to settle and make known the very time and place of a\ngeneral engagement.\n\nBut waving all conjecture, a more satisfactory reason may be found in\nthe necessity that it should be known for CERTAIN, that a war is not\nthe PRIVATE undertaking of bold ADVENTURERS, but made and sanctioned\nby the PUBLIC and SOVEREIGN authority on both sides; so that it is\nattended with the effects of binding all the subjects of the respective\nstates;--and it is accompanied also with other consequences and rights,\nwhich do not belong to wars against pirates, and to civil wars.\n\nXII. There is much truth indeed in the observations, which some have\nmade, and which they have produced examples to confirm, that even in\nwars of this kind all captures become the lawful prize of the captors.\n\nYet this is only partially true, and that too, according to the law\nof nature, and not according to the voluntary law of nations. For the\nlatter only makes provision to secure the rights of nations, as WHOLE\ncommunities, and not of those, who, as in civil wars, form but ONE PART\nof a nation.\n\nThe same writers are mistaken too in the supposition that defensive\nwars require no declaration. For it is no less necessary to shew by\nway of vindication that it is a defensive war, and at the same time\nby public declaration to give it the character of a national and\nlawful war, in order to establish those rights and consequences, that\nhave been already mentioned, and which will hereafter be more fully\nexplained.\n\nXIII. They maintain another position also, which is by no means\ntrue, and that is, that a power ought not IMMEDIATELY to follow up\na declaration of war with actual hostilities, as Cyrus did to the\nArmenians, and the Romans to the Carthaginians. For the law of nations\nrequires the intervention of no DEFINITE time between the declaration\nand the commencement of war.\n\nThere may indeed be some cases, where natural justice will render such\na delay proper. Thus, for instance, where reparation for injury, or\nthe punishment of aggressors is demanded, it is but reasonable to wait\ntill it can be known, whether the just demand will be complied with or\nrejected.\n\nXIV. In order to establish the same consequences, a declaration will\nbe equally necessary too, where the rights of Ambassadors have been\nviolated. Yet it will be sufficient for it to be made in the manner,\nin which it may be done with the greatest safety. As in many other\nmatters, in places which afford no security, satisfaction is demanded\nby denunciation or summons.\n\n\n\n\nCHAPTER IV.\n\nON THE RIGHT OF KILLING AN ENEMY IN LAWFUL WAR, AND COMMITTING OTHER\nACTS OF HOSTILITY.\n\n General explanation of the effects of formal war--Distinction between\n lawful and innocent impunity--Merit of the latter--Examples\n added to explain it--General effects of former war considered\n with respect to lawful impunity--The reason of their\n introduction--Historical testimonies--By this right all persons,\n found within an enemy's territory, objects of hostility--Also all\n going thither before the war--The subjects of an enemy liable to\n be seized everywhere, except protected by the laws of a neutral\n territory--Case of women and children--Case of prisoners--Of those\n whose voluntary offer of surrender is rejected--Unconditional\n surrender--Retaliation--Obstinate defence--Hostages.\n\n\nI. Servius in his comment on the passage of Virgil, where that poet\nsays that war \"will authorise mutual acts of destruction and rapine,\"\nin tracing the fecial or herald's law to Ancus Martius, and even beyond\nhim to a still more remote period, remarks that, \"if ever the persons\nor property of subjects, belonging to the Roman state, were seized\nand carried off by any other nation, the principal Herald, or King at\narms went out with the sacred ministers, who presided at the making of\nsolemn treaties, and proceeding to the verge of the territories of the\noffending nation, declared with a loud voice the cause of the war, and\nthe refusal of that nation either to restore what had been seized, or\nto deliver up the aggressors to justice. After this he threw a spear to\nindicate that war and all its consequences were from that moment begun.\"\n\nThe commentator had previously observed that the ancients gave the name\nof rapine to every act of hostility even where there was no act of\nplunder committed; and they likewise called every kind of restitution a\nsatisfaction.\n\nBy this explanation we learn that whenever war is proclaimed between\ntwo states or sovereigns, it is accompanied with certain rights or\nconsequences, which do not NECESSARILY belong to war itself. And this\nis perfectly conformable to the examples from the Roman Lawyers, which\nhave been before produced.\n\nII. But it will be proper to consider how far the lawfulness, which\nVirgil speaks of, extends. For the term lawful sometimes implies\nwhatever is just and pious in all respects, although the pursuit of\na different course may perhaps be more laudable: according to the\nexpression of St. Paul, who says, \"all things are lawful to me, but\nall things are not expedient.\" Ulpian is speaking of a seller, who, at\nthe expiration of a certain period, is not answerable for the safety\nof goods, which a buyer has neglected to take away, says he, will yet\nthink himself bound in EQUITY to preserve them with all imaginable\ncare. On some occasions when it is said, that men may LAWFULLY do a\nthing, the expression only means that doing such act will not subject\nthem to human and legal penalties, but it by no means indicates\nthat the action is strictly conformable to the rule of religion and\nmorality. Thus among the Lacedaemonians and Egyptians stealing was\nallowed: an indulgence that by no means took away the GUILT of theft.\n\nCicero in the fifth of his Tusculan questions, speaking of Cinna,\nbeautifully and justly points out this abuse of the word, LAWFUL. \"He\nseems to me, _says he_, a wretched man indeed for having done those\nacts, and for having been in a situation, where they might be thought\nlawful. It can never be lawful for any man to do wrong: but we fall\ninto a great mistake in the use of that word: for we consider a thing\nto be lawful, which any one may do with impunity.\" This is the meaning,\nin which the term is generally understood, as the same orator, in\naddressing the judges in behalf of Rabirius Posthumus, observes, \"it\nbehoves you to consider, what is becoming your character, and not what\nthe rigour of the law allows you to inflict. For if you consult the\nfull extent of your authority, you may make away with any citizen you\nplease.\"\n\nIn the same manner legislators, as it was proved in a former book of\nthis treatise, are not accountable, in their legislative capacity, to\nany human tribunal, for the laws, which they make, yet they cannot, in\na moral point of view, avail themselves of this transcendent power to\nenact a thing that is evidently unjust. In this sense we often meet\nwith a distinction made between what is proper or right, and what is\nlawful. Thus Cicero, in his speech for Milo, makes the LAW OF NATURE\nthe standard of what is RIGHT, and LEGAL AUTHORITY, the standard of\nwhat is lawful.\n\nIII. Thus qualified, the annoyance of an enemy, either in his person or\nproperty, is lawful. This right extends not only to the power engaged\nin a just war, and who in her hostilities confines herself within\nthe practice established by the law of nature, but each side without\ndistinction has a right to employ the same means of annoyance. So that\nany one taken in arms, even in another's territory, cannot be treated\nas a robber, malefactor, or murderer, nor can even that neutral power,\nin whose territory he is taken, treat him as an enemy, for being found\nin arms.\n\nIV. This principle was established by nations to prevent others from\ninterfering in their disputes, or giving the law to them respecting the\nrights of war. Besides, if this were not the case, neutral powers would\nfrequently be involved in the wars of others. A reason which the people\nof Marseilles urged in the dispute between Caesar and Pompey. They\nalleged that they had neither sufficient judgment to determine on which\nside justice lay, nor, if they could determine, had they strength to\ngive effect to their decisions.\n\nA spectator indeed is but ill qualified to judge, how far, even in\nthe most just war, self-defence, the attainment of indemnity, or the\npunishment of an aggressor, may be carried. These are points, which,\non many, if not most, occasions must be left to the conscience and\ndiscretion of the belligerents themselves: a mode far preferable to\nthat of appealing to the mediation, and decision of disinterested\nand neutral powers. Livy has given an address of the Achaeans to the\nsenate, in which they ask, \"how their availing themselves of the rights\nof war can ever be fairly called in question, or made a subject of\ndiscussion?\"\n\nBesides the impunity attending certain actions done in war, the\nacquisition of territory by the right of conquest is another topic of\nconsideration, which will hereafter be examined.\n\nV. The lawfulness of injuring or destroying the person of a public\nenemy is supported by the testimony of many of the best writers, both\npoets, moralists, and historians. In one of the tragedies of Euripides,\nthere is a proverb, which says, that \"to kill a public enemy, or an\nenemy in war is no murder.\" Therefore the custom of the ancient\nGreeks, which rendered it unlawful and impious to use the same bath,\nor to partake of the same festivities and sacred rites with a person\nwho had killed another in time of peace, did not extend to any one who\nhad killed a public enemy in war. Killing an enemy is indeed everywhere\ncalled a right of war. \"The rights of war, _says Marcellus in Livy_,\nsupport me in all that I have done against the enemy.\" And the same\nhistorian gives the address of Alcon to the Saguntines, where he says,\n\"You ought to bear these hardships, rather than suffer your own bodies\nto be mangled, and your wives and children to be seized and dragged\naway before your eyes.\" Cicero in his speech in defence of Marcellus\npasses a high encomium upon the clemency of Caesar, who, \"by the laws\nof war and the rights of victory, might have put to death all, whom\nhe had spared and protected.\" And Caesar observes to the Eduans, that\n\"it was an act of kindness in HIM, to spare those whom the laws of war\nwould have authorised him to put to death.\"\n\nBut the rights of war, for which these writers plead, could not\nPERFECTLY JUSTIFY the putting prisoners to death, but could only grant\nIMPUNITY to those who availed themselves of the barbarous custom. There\nis a wide difference however between actions like these, and destroying\nan enemy by proper means of hostility. For, as Tacitus says, \"in the\nleisure hours of peace the merits and demerits of every case may be\nexamined and weighed, but, in the tumult and confusion of war, the\ninnocent must fall with the guilty\": and the same writer, in another\nplace, observes, that \"there are many actions, which the principles\nof humanity cannot ENTIRELY approve, but which the policy of war\nrequires.\" And it is in this, and no other sense that Lucan has said,\n\"the complexion of right may be assigned to what is wrong.\"\n\nVI. This right of making lawful what is done in war is of great extent.\nFor in the first place it comprises, in the number of enemies, not only\nthose who actually bear arms, or who are immediately subjects of the\nbelligerent power, but even all who are within the hostile territories,\nas appears from the form given by Livy, who says, that \"war is declared\nagainst the sovereign, and all within his jurisdiction.\" For which a\nvery good reason may be assigned; because danger is to be apprehended\neven from THEM, which, in a continued and regular war, establishes the\nright now under discussion.\n\nReprisals do not come exactly under the same rule. For like taxes,\nthey were introduced for the discharge of public debts, for no part\nof which temporary residents, or foreigners are answerable. Therefore\nBaldus is right in his observation, that, after war is actually begun,\nmuch greater latitude is allowed, than in the bare right of making\nreprisals. So that what is said of foreigners, who enter into an\nenemy's country, and reside there, after war is avowedly declared and\nbegun, is undoubtedly true.\n\nVII. But persons, who had gone to reside there before the war was\nbegun, seem by the law of nations to be included in the number of\nenemies, unless within a reasonable time they chuse to withdraw. So\nthat the Corcyraeans, when going to besiege Epidamnus, gave leave to\nall strangers to withdraw, denouncing that they would otherwise be\ntreated as enemies.\n\nVIII. But the persons of natural-born subjects, who owe permanent\nallegiance to a hostile power may, according to the law of nations, be\nattacked, or seized, wherever they are found. For whenever, as it was\nsaid before, war is declared against any power, it is at the same time\ndeclared against all the subjects of that power. And the law of nations\nauthorises us to attack an enemy in every place: An opinion supported\nby most legal authorities: thus Marcian says \"that deserters may be\nkilled in the same manner as enemies, wherever they are found.\" They\nmay be lawfully killed there, or in their own country, in the enemy's\ncountry, in a country belonging to no one, or on the sea. But as to\nthe unlawfulness of killing, or violently molesting them in a neutral\nterritory, this protection does not result from any personal privileges\nof THEIR OWN, but from the rights of the SOVEREIGN of that country.\nFor all civil societies had an undoubted right to establish it as a\nstanding maxim that no violence should be offered to any person within\ntheir territories, nor any punishment inflicted but by due process of\nlaw. For where tribunals retain their authority in full vigour, to try\nthe merits of every offence, and, after impartial inquiry, to acquit\nthe innocent, or condemn the guilty, the power of the sword must be\nrestrained from inflicting promiscuous death.\n\nLivy mentions the circumstance of seven Carthaginian gallies riding\nat anchor in a port belonging to Syphax, who was then at peace with\nthe Carthaginians and Romans. Scipio arrived at that time, with two\ngallies, which might have been attacked and sunk by the Carthaginians,\nbefore they could enter the port: a brisk wind rising carried them in,\nbefore the Carthaginians could weigh anchor; but out of respect to the\nking's authority they durst not attack the Romans in his harbour.\n\nIX. But to return to the subject, which is, to decide how far the\npower of lawfully destroying an enemy, and all that belong to him,\nextends. An extent of which we may form some conception from the very\ncircumstance, that even women and children are frequently subject to\nthe calamities and disasters of war. There is no occasion to allege\nin this place, as an example, the conduct of the Hebrews, who slew\nthe women and children of the Heshbonites, and who were commanded to\nexecute vengeance upon the Canaanites, and upon all, who were involved\nin the same guilt. Those examples, where God MANIFESTLY interposes his\ncommands, are not to be drawn into a precedent for authorising actions\nof the SAME kind on DIFFERENT occasions. For the supreme and disposing\npower of God can never properly be compared with that, which men are\nallowed to exercise over each other. The Psalmist's expression of the\nBabylonian children being dashed against the stones is a much stronger\nproof of the custom commonly prevailing among nations, in the use of\nvictory, to which the language of Homer bears a close resemblance,\nwhere the poet says, that \"in the cruel rage of war, even the bodies of\ninfant-children were dashed against the ground.\" Thucydides relates,\nthat when Mycalessus was captured by the Thracians, they put all,\neven women and children to the sword. Arrian relates the same of\nthe Macedonians, when they took the city of Thebes. And Germanicus\nCaesar, according to the account of Tacitus, laid waste whole cantons\nof the Marsians, a people of Germany, with fire and sword, to which\nthe historian adds, \"without sparing either age or sex.\" The Jewish\nwomen and children too were exposed by Titus, to be torn to pieces by\nwild beasts at a public spectacle. Yet neither of those generals were\nthought deficient in humanity, so much had custom reconciled the minds\nof men to this barbarous usage. So that the massacre of the aged, like\nthat of Priam by Pyrrhus, is no way surprising.\n\nX. The right of putting prisoners of war to death, was so generally\nreceived a maxim, that the Roman Satirist has founded an adage upon\nit, and said, \"that when you can sell a prisoner for a slave, it would\nbe absurd to kill him.\" Words which imply the full power of doing so,\nif the captor thought proper. The commentators indeed assign the act\nof saving, as the derivation of the Latin word, _servus_, a slave.\nThus Thucydides speaks of the prisoners taken at Epidamnus, and killed\nby the Corcyraeans, and Hannibal is reported to have massacred five\nthousand prisoners at once. Nor was this power limited by the law of\nnations to any particular time, though it was controuled by greater\nrestrictions in some places, than in others.\n\nXI. Besides many examples occur of suppliants, being killed. Both\nancient poets and historians relate such actions, as ordinary\npractices, authorised by the laws of war. Augustin commends the Goths\nfor sparing suppliants, who had fled to churches for refuge, and adds\nby way of comment, that \"they deemed it unlawful to avail themselves of\nthe power, which had usually been allowed by the laws of war.\"\n\nNor did those who offered to surrender always experience the lenity\nand mercy, which they sought thereby. Tacitus relates, that when the\ncity of Uspes was invested, the besieged sent a deputation with offers\nof an immediate surrender, and of no less than ten thousand slaves,\non condition that the free-born should remain unhurt. The terms were\nrejected--A proof that such a rejection was thought conformable to the\nrights of war.\n\nXII. But even after an unconditional surrender, we find that those, who\nhad capitulated were sometimes put to the sword. In this manner the\nprinces of Pometia were treated by the Romans, the Samnites by Sylla,\nthe Numidians and Vercingetorix by Caesar. It was almost a standing\npractice with the Romans to crown their triumphs with the death of\nan enemy's generals, whether made prisoners actually in the field,\nor by capitulation. Cicero notices this custom in his fifth speech\nagainst Verres. Livy may be consulted on this point in many parts of\nhis history, particularly in the twenty-eighth book: and Tacitus also\nin the 12th book of his Annals. The latter writer, in the first book\nof his HISTORY, relates that Galba ordered every tenth man of those,\nwhom he had, upon their earnest supplication, admitted to surrender,\nto be beheaded: and Caecina, after the capitulation of Aventicum,\npunished Julius Alpinus, one of the leading men, with death, as a\nchief promoter of the war, leaving the rest to the mercy or cruelty of\nVitellius.\n\nXIII. Historians sometimes account for this right of putting enemies\nto death, especially prisoners, or suppliants, either on the score\nof retaliation, or for obstinate resistance. These may sometimes be\nthe real, but cannot be the JUSTIFIABLE motives of such proceedings.\nFor the law of retaliation, strictly and properly so called, must be\ndirectly enforced upon the person of the delinquent himself. Whereas,\nin war, what is called retaliation frequently redounds to the ruin of\nthose, who are no way implicated in the blame. The general consequences\nof war are thus described by Diodorus Siculus, \"they could not be\nignorant, _says he_, having learnt from experience, that all being\ninvolved in the common fortune of war, they are liable on both sides in\ndefeat, to suffer the same calamities, which they themselves would have\ninflicted upon the conquered party.\"\n\nBut as the Neapolitans reply to Belisarius, in Procopius, no one can be\nthought deserving of punishment for a resolute adherence to the side\non which he is engaged, especially when actuated by natural and just\nmotives in his choice of that side. So far from incurring guilt by such\na resolution, it is on the other hand more criminal for any one to\ndesert his post: and so it was judged by the military laws of ancient\nRome. Livy says, it was a capital offence, for which no fear of danger\ncould be pleaded as an excuse. So that in the rigid application of\nthis right, OWING TO ITS IMPORTANCE, every one is left to use his own\ndiscretion, and there may be times and circumstances, in which the law\nof nations will justify its full exertion.\n\nXIV. The same right was exercised upon hostages also, not only upon\nthose who had bound themselves, as it were, by convention, but even\nupon those, who had been delivered up by others. Two hundred and fifty\nhostages were once massacred by the Thessalians, and the Volsci Aurunci\nto the amount of three hundred by the Romans. It is to be observed\nthat children were sometimes given, as hostages, which we find was\ndone by the Parthians, and by Simon, who was one of the Maccabees. And\nin the times of Porsena it was usual to deliver women, as hostages: a\npractice, which, as Tacitus informs us, was followed by the Germans.\n\nXV. As the law of nations permits many things, in the manner above\nexplained, which are not permitted by the law of nature, so it\nprohibits some things which the law of nature allows. Thus spies, if\ndiscovered and taken, are usually treated with the utmost severity. Yet\nthere is no doubt, but the law of nations allows any one to send spies,\nas Moses did to the land of promise, of whom Joshua was one.\n\nPersons of that description may sometimes be LAWFULLY employed by\nthose, who are engaged in an EVIDENTLY just war. Others too, who have\nnot such evident proofs of the justice of their cause, may plead the\nrights of war as a vindication for employing such persons.\n\nBut if any are to be found, who disdain to avail themselves of such\na privilege, or opportunity, no argument either FOR, or AGAINST the\nLAWFULNESS of employing spies can be drawn from their conduct, which\nproceeds rather from a nobleness of mind, and a confidence in open\nstrength, than from any decided opinion upon the subject.\n\n\n\n\nCHAPTER V.\n\nON THE RIGHT TO LAY WASTE AN ENEMY'S COUNTRY, AND CARRY OFF HIS EFFECTS.\n\nAn enemy's property may be wasted and plundered--Things deemed sacred,\nhow far exempted--Stratagem, how far permitted.\n\n\nI. Cicero, in the third book of his offices, has said that there is\nnothing repugnant to the LAW OF NATURE in spoiling the effects of an\nenemy, whom by the same law we are authorized to kill. Wherefore it is\nnot surprising that the same things should be allowed by the LAW OF\nNATIONS. Polybius, for this reason, in the fifth book of his history,\nmaintains, that the laws of war authorise the destruction of an enemy's\nforts, harbours, and fleets, the seizure of his men, or carrying off\nthe produce of his country, and every thing of that description. And we\nfind from Livy that there are certain rights of war, by which an enemy\nmust expect to suffer the calamities, which he is allowed to inflict,\nsuch as the burning of corn, the destruction of houses, and the plunder\nof men and cattle. Almost every page of history abounds in examples\nof entire cities being destroyed, walls levelled to the ground, and\neven whole countries wasted by fire and sword. Even in cases of\nsurrender, towns have sometimes been destroyed, while the inhabitants\nwere spared--an example of which is given by Tacitus, in the taking of\nArtaxata by the Romans; the inhabitants opened their gates and were\nspared, but the town was devoted to the flames.\n\nII. Nor does the law of nations, in itself, considered apart from other\nduties, which will be mentioned hereafter, make any exemption in favour\nof things deemed sacred. For when places are taken by an enemy, all\nthings without exception, whether sacred or not, must fall a sacrifice.\nFor which it is assigned as a reason, that things which are called\nsacred, are not actually excepted from all human uses, but are a kind\nof public property, called sacred indeed from the general purposes, to\nwhich they are more immediately devoted. And as a proof of this, it is\nusual, when one nation surrenders to another state or sovereign, to\nsurrender, along with other rights, every thing of a sacred kind, as\nappears by the form cited from Livy in a former part of this treatise.\n\nAnd therefore Ulpian says, that the public have a property in sacred\nthings. Conformably to which Tacitus says, that \"in the Italian towns\nall the temples, the images of the Gods, and every thing connected\nwith religion belonged of right to the Roman people.\" For this reason\na nation, as the Lawyers, Paulus and Venuleius openly maintain, may,\nunder a change of circumstances, convert to secular uses things, that\nhave before been consecrated: and an overruling necessity may justify\nthe hand, which has formerly consecrated the object in employing it as\none of the resources and instruments of war. A thing which Pericles\nonce did under a pledge of making restitution: Mago did the same in\nSpain, and the Romans in the Mithridatic war. We read of the same\nactions done by Sylla, Pompey, Caesar, and others. Plutarch in his life\nof Tiberius Gracchus says that nothing is so sacred and inviolable,\nas divine offerings: yet no one can hinder these from being removed\nor applied to other purposes at the pleasure of the state. Thus Livy\nmentions the ornaments of the temples, which Marcellus brought from\nSyracuse to Rome, as acquisitions made by the right of war.\n\nIII. What has been said of sacred things and edifices applies also to\nanother kind of solemn fabrics, and those are sepulchral structures,\nwhich may be considered not merely as repositories of the dead, but as\nmonuments belonging to the living, whether families or states. For this\nreason Pomponius has said, that these, like all other sacred places,\nwhen taken by an enemy may lose their inviolability, and Paulus is of\nthe same opinion, observing that we are not restrained by any religious\nscruple from using the sepulchres of an enemy: for the stones, taken\nfrom thence, may be applied to any other purpose. But this right does\nnot authorise wanton insult, offered to the ashes of the dead. For that\nwould be a violation of the solemn rights of burial, which, as it was\nshewn in a preceding part of this work, were introduced and established\nby the law of nations.\n\nIV. Here it may be briefly observed, that, according to the law of\nnations any thing, belonging to an enemy, may be taken not only by open\nforce, but by stratagem, provided it be unaccompanied with treachery.\n\n\n\n\nCHAPTER VI.\n\nON THE ACQUISITION OF TERRITORY AND PROPERTY BY RIGHT OF CONQUEST.\n\n Law of nature with respect to the acquisition of things captured\n in war--Law of nations on the same subject--In what cases the\n law of nations confirms the capture of things moveable--Lands\n acquired by conquest--Lawful prize cannot be made of things not\n belonging to an enemy--Goods found on board an enemy's ships--Law\n of nations authorises the making prize of what an enemy has taken\n from others in war--Sovereigns may acquire possession and dominion\n through those employed by them--Acts of hostility divided into\n public and private--Territory may be acquired by a sovereign or\n people--Private and public captures explained--Discretionary\n power of generals in this respect--Prizes belong either to the\n treasury, or to those, who take them--Places sometimes given up\n to be plundered by the soldiery--Different methods of dividing\n spoils--Peculation, a portion of the spoils sometimes given\n to allies, who have supported the war--Sometimes given up to\n subjects--This illustrated by examples--Utility of the above\n practices--Whether things taken without the territory of either of\n the belligerent powers can be acquired by the rights of war--In\n what manner this right peculiarly applies to solemn wars.\n\n\nI. Besides the impunity allowed to men for certain actions, which\nhave been mentioned before, there are other consequences and effects,\npeculiar to the law of nations, attending solemn and formal war. The\nlaw of nature indeed authorises our making such acquisitions in a just\nwar, as may be deemed an equivalent for a debt, which cannot otherwise\nbe obtained, or as may inflict a loss upon the aggressor, provided it\nbe within the bounds of reasonable punishment. According to this right,\nas we find in the fourteenth chapter of Genesis, Abraham devoted to God\na tenth part of the spoils, which he had taken from the five kings:\nand the inspired writer in the seventh chapter of his Epistle to the\nHebrews gives the same interpretation of this passage. In the same\nmanner the Greeks too, the Carthaginians, and the Romans, devoted a\ntenth portion of the spoils of war to their deities. Jacob, in making\na particular bequest to Joseph above his brethren, says, \"I have given\nto thee one portion above thy brethren, which I took out of the hand\nof the Amorite with my sword, and with my bow.\" In this place, the\nexpression, I TOOK, is used according to the prophetic style, where\nan event, that will for certain take place, is spoken of in the past\ntime, and an action is here attributed to Jacob, which some of his\ndescendants were to perform, supposing the progenitor and his children\nto be the same person.\n\nNor is it upon conjecture alone that such a right is founded, but the\ndivine law giver himself pronounces sentence against a city that has\nrejected the offers of peace, and afterwards been taken by storm, that\nhe gives all her spoils to the conqueror.\n\nII. But according to the law of nations, not only the person, who makes\nwar upon just grounds; but any one whatever, engaged in regular and\nformal war, becomes absolute proprietor of every thing which he takes\nfrom the enemy: so that all nations respect his title, and the title\nof all, who derive through him their claim to such possessions. Which,\nas to all foreign relations, constitutes the true idea of dominion.\nFor, as Cyrus, in Xenophon observes, when the city of an enemy is\ntaken, every thing that is taken therein becomes a lawful prize to the\nconquerors; and Plato, in his treatise on laws asserts the same. Cicero\nin his speech against Rullus says that Mitylene belonged to the Roman\npeople by the laws of war, and the right of conquest; and, in the first\nbook of his offices, he observes, that some things become the private\nproperty of those, who take possession of them, when unoccupied, or\nof those, who make a conquest of them in war.--Theophilus, in his\nGreek institutes, calls the one the natural mode of acquisition, and\nAristotle denominates the other the natural way of acquisition by the\nsword, without regarding any other reason, but the bare fact, from\nwhich the right arises. Thus Nerva, the son, as Paulus the lawyer\nrelates, said that property arose from natural possession, some traces\nof which still remain respecting wild animals taken either upon the\nsea, or upon the land, or birds flying in the air. It is seen also in\nthings taken in war, all which immediately become the property of the\nfirst captors. Now things are considered as taken from an enemy, when\ntaken from his subjects.\n\nThus Dercyllides argues, in Xenophon, that as Pharnabazus was an enemy\nto the Lacedaemonians, every thing belonging to Mania, who was his\nsubject, might be seized by the laws of war.\n\nIII. But in this question upon the rights of war nations have decided,\nthat a person is understood to have made a capture, when he detains\na thing in such a manner, that the owner has abandoned all probable\nhopes of recovering it, or, as Pomponius, speaking on the same subject,\nsays, when a thing has escaped beyond pursuit. This takes place with\nrespect to moveable things in such a manner, that they are said to be\ntaken, when they are carried within the territories of the enemy, or\nplaces belonging to him. For a thing is lost in the same manner as it\nis recovered by postliminium. It is said to be recovered whenever it\nreturns within the territories of its owner's sovereign, that is, into\nplaces, of which he is master. Paulus indeed has expressly said, that\na power or state has lost a subject, when he has gone, or been carried\nout of the territories of that power: and Pomponius defines a prisoner\nof war to be an enemy, whom the troops of some other belligerent power\nhave taken and carried into one of their own places; for before he is\ncarried into those places, he continues still a subject of the enemy.\n\nThe law of nations, in these respects, treated persons and things in\nthe same manner. From whence it is easy to understand, what is meant,\nwhen in another place it is said that things taken from an enemy\nimmediately become the lawful prize of the captors, but only upon\nthe condition of those things continuing in their possession for a\nreasonable and certain time. Consequently it is plain, that ships and\nother things taken at sea cannot be considered as really the property\nof the captors, till they have been carried into some of their ports,\nor to some place where their whole fleet is stationed. For in that case\nall hope of recovery seems to have vanished. By a late regulation among\nthe European powers, it has been made an established maxim of the law\nof nations, that captures shall be deemed good and lawful, which have\ncontinued in the enemy's possession for the space of twenty-four hours.\n\nIV. Lands are not understood to become a lawful possession and absolute\nconquest from the moment they are invaded. For although it is true,\nthat an army takes immediate and violent possession of the country\nwhich it has invaded, yet that can only be considered as a temporary\npossession, unaccompanied with any of the rights and consequences\nalluded to in this work, till it has been ratified and secured by some\ndurable means, by cession, or treaty. For this reason, the land without\nthe gates of Rome, where Hannibal encamped, was so far from being\njudged entirely lost, that it was sold for the same price that it would\nhave been sold for before that period.\n\nNow land will be considered as completely conquered, when it is\ninclosed or secured by permanent fortifications, so that no other\nstate or sovereign can have free access to it, without first making\nthemselves masters of those fortifications. On this account Flaccus,\nthe Sicilian, assigns no improbable conjecture for the origin of the\nword territory, because the enemy is DETERRED from entering it. At\nleast there is as much probability in this conjecture, as in that of\nVarro, who derives it from the word _terendo_, treading the soil.\nFrontinus deduces it from _terra_, the earth, and Pomponius from the\nTERROR of judicial authority exercised in each country. Xenophon\nhowever in his book on tributes, seems to accord with the first of\nthese opinions: for he says, that in time of war the possession of a\ncountry is kept by walls, strong holds, and barriers.\n\nV. It is a clear point too, that for any thing to become a prize or\nconquest by the right of war, it must belong to an enemy. For things,\nwithin an enemy's territory, for instance, in any of his towns or\ngarrisons, cannot be acquired as property by the laws of war, if\nthe owners of those things are neither subjects nor confederates of\nthe enemy. It is observed in one of the speeches of Aeschines, that\nPhilip, though at war with the Amphipolitans, could not lawfully\ntake possession of Amphipolis, as a conquest, it being a city, which\nbelonged to the Athenians. For as the enemy is likely to derive no\nassistance in the war, from things which neither belong to himself,\nnor to a confederate, no just reason can be assigned for taking them,\nand the right of making things change their owners by force is of too\nodious a nature to admit of any extension.\n\nVI. The observation usually made, that all things on board an enemy's\nships are to be deemed an enemy's goods, ought not to be received as\na STANDING and ACKNOWLEDGED rule of the law of nations, but only as a\nmaxim, indicating the strong presumption that both goods and vessel\nbelong to the same owner, unless clear proof to the contrary can be\nbrought. The States General of Holland made such a decision in the\nyear 1338, at a time when the war with the Hanse-towns raged with the\ngreatest violence, and the decision consequently passed into a law.\n\nVII. According to the law of nations it is undoubtedly true, that\nthings taken from an enemy which had been captured by him cannot be\nclaimed by those, to whom they belonged before they were in the enemy's\npossession, and who had lost them in war. Because the law of nations\nassigned them to the enemy by the first capture, and then to the\nperson, who took them from him by the second.\n\nUpon this principle among others, Jephthah defends himself against the\nAmmonites, because by the laws of war they had lost the land, which\nthey claimed, in the same manner, as another part had been transferred\nfrom the Moabites to the Amorites, and from the Amorites to the\nHebrews. Thus David too claims and divides as his own, what he himself\nhad taken from the Amalekites, and the Amalekites, before him, from the\nPhilistines.\n\nTitus Largius, as we are informed by Dionysius of Halicarnassus, when\nthe Volscians laid claim to some possessions, which they had formerly\nheld, delivered it as his opinion in the Roman Senate, that \"the Romans\nwere the fair and just owners of what they had gained by the right of\nconquest, nor ought they to be so weak as to abandon the fruits of\ntheir valour. For not only the people of that day, but their posterity\nalso had a right to a share of those possessions: so that to abandon\nthem would be treating themselves like enemies.\"\n\nVIII. and IX. One great point, which the law of nations designed to\nestablish, was that the effects or possessions of one enemy should be\nconsidered by another, as things having no owner.\n\nThings, belonging to no one, became the property of those, who find or\ntake them, both of those, who, like sovereign powers, employ others in\nsuch service, and of those, who take them with their own hands.\n\nThus not only slaves, or the immediate members of a man's household,\nbut all, who engage themselves, any way, in the service of others, may\nbe said to acquire for their employers all the property, which they\ntake or gain, even in those things, which apparently lie in common to\nall men, such as pearls, fish, or fowl.\n\nModestinus has justly said, \"that whatever is naturally gained, like a\npossession, we may acquire through the means of any one we chuse to\nemploy,\" and, upon the same principle, Paulus observes, that \"in every\nacquisition, the exertion of mind and body must concur; the former\npurely our own, and the latter, either our own, or that of another.\nIn the same manner possession may be taken for us by an attorney,\nguardian, or trustee, provided they do it on our account and in our\nname.\" The reason of which is, because one man may naturally be the\nvoluntary instrument of another, with the consent of that other.\nSo that the distinction made between persons in a servile and free\ncondition, as to the acquisition of property, is a distinction only of\nthe civil law, and applicable to its rules of transferring, acquiring,\nand confirming, property. And yet the emperor Severus afterwards\napplied these rules to the natural acquisition of things, not only from\nmotives of utility, but, as he avowed himself, from motives of equity\nand justice. So that, apart from all authority of the civil law, it is\nan established maxim that what any one can do for himself, he can do\nthrough means of another, and doing such acts by another is the same as\ndoing them himself.\n\nX. A distinction must be made between actions in war, that are\nreally of a PUBLIC NATURE, and the acts of INDIVIDUALS, occasioned\nby public war: by the latter, individuals acquire an absolute and\ndirect property, in the things, which they take, and by the former,\nthe state makes those acquisitions. Upon this principle of the law of\nnations Scipio treated with Masinissa, stating that as it was under\nthe auspices of the Roman people, that Syphax was conquered and taken\nprisoner, himself, his wife, his kingdom, his territory, his towns,\nand subjects inhabiting those towns, in short, every thing belonging\nto him became a lawful prize to the Roman people. In the same manner,\nAntiochus the Great maintained that Coelo-Syria belonged to Seleucus,\nand not to Ptolemy, because Seleucus had been the principal in the war,\nto which Ptolemy had contributed his assistance. In the fifth book of\nPolybius, there is an account of the matter.\n\nXI. Things immoveable are generally taken by some public act, such as\nmarching an army into the country, or placing garrisons there. So that,\nas Pomponius has said, \"lands taken from the enemy become the property\nof the state, and form no part of the booty belonging to the individual\ncaptors.\" Thus among the Hebrews and Lacedaemonians, lands that were\nmade a conquest, were divided by lot. The Romans too either retained\nconquered lands to let them out for rent, sometimes leaving a small\nportion to the ancient possessor, or divided them among colonists,\nwhom they sent out, or made them tributary; innumerable instances of\nwhich we meet with in their histories, their laws, and treaties on the\nadmeasurements of lands.\n\nXII. But things moveable, whether inanimate, or living, are taken\neither as connected or unconnected with the public service. When\nunconnected with the public service, they become the property of the\nindividual captors.[62]\n\nReference may here be made to the remark of Celsus, that \"enemy's\ngoods found among us do not belong to the state, but to the prior\noccupant.\" By which are meant things found among us at the breaking out\nof a war. For the same was observed of persons, when, under the same\ncircumstances, they were considered as goods taken.\n\nOn this subject there is a remarkable passage in Tryphoninus. \"Those\npersons, _says he_, who have gone into a foreign country in time of\npeace, upon the sudden breaking out of war, are made slaves by those,\namong whom it is their misfortune to be found, being considered as\nenemies.\"\n\nXIII. What has been said upon the law of nations, allowing individuals\nto acquire property by taking it from an enemy, must be understood as\nmeaning the law of nations, prior to the regulations of civil laws\nupon that point. For the capture of an enemy's goods which at first\nappear to resemble things in common, which any one may seize, is now,\nlike that of wild birds or beasts, subject to limitation by the laws\nof every state, being in some cases assigned to the sovereign, and in\nothers, belonging to the captors. It may in some countries, indeed, be\nintroduced as a rule of law for the whole of an enemy's goods found\nthere to be confiscated.\n\nXIV. The case is very different respecting what any one takes in\nactual engagements. For there every individual bears the character of\nhis country, acting in her stead, and supporting her rights. Through\nthe exertions of those individuals, the state acquires both property\nand dominion, with a power, according to the principles of civilized\ncountries, of conferring them on whom she pleases.\n\nThis is not a practice of modern date, but one prevailing among the\nmost free and independent nations of remote antiquity. The poets,\nand historians of those days, describe the hero, after the heat, the\nburden, and dangers of the day, carrying his spoils to the common\nstock, to be divided by the General among the army, after retaining his\nproper share to himself.\n\nXXIII.[63] It is observed by legal authorities to be a custom, which\nhas silently gained ground, for either allies or subjects, who engage\nin war, without pay, and at their own risque and expence, to be\nrewarded with the captures that they make.\n\nThe reason, why allies have such a privilege, is evident. Because one\nally is naturally bound to another to repair the losses, which he has\nsustained by entering into a mutual agreement to support a common\ncause. Besides it seldom happens, that services are given without some\nconsideration in return.\n\nQuintilian, applying the same reasoning to another case, alleges that\nit is but just for orators and advocates, who devote their whole\ntime and talents to the business of others, to be requited for their\nservices: as thereby they preclude themselves from acquiring gain in\nany other way.\n\nIt is most likely therefore that some advantage gained from the enemy\nis always expected, as a compensation for the loss and risque incurred,\nunless there is evidence to the contrary from some antecedent treaty,\nin which there is an express stipulation for gratuitous assistance and\nservices.\n\nXXIV. Such claim to a share of the spoils is not equally evident,\nwhere SUBJECTS ONLY are concerned. For the state has a RIGHT TO THEIR\nSERVICES. Still where ALL are not engaged in arms, but only SOME,\nthose, who give up their time to the calling of soldiers, and expose\ntheir lives to its hazards, have a right to be rewarded and supported\nby the body politic:--and as a compensation for this loss of time, and\nthis personal danger, it is but reasonable they should have a share of\nthe spoils.\n\nWith respect to allies there is an example in the Roman treaty, in\nwhich the Latins are admitted to an equal share of the spoil, in those\nwars, which were carried on under the auspices of the Roman people.\n\nThus in the war, which the Aetolians carried on with the assistance\nof the Romans, the lands and cities were ceded to the Aetolians, and\nthe prisoners and moveable effects were given to the Romans. After\nthe defeat of king Ptolemy, Demetrius gave part of the spoils to the\nAthenians. Ambrose, in speaking of the expedition of Abraham, shews the\nequity of this practice. He asserts that it was but just for those, who\nhad assisted him as partners in the danger, to share in the prizes,\nwhich were their due reward.\n\nAs to what were the privileges of subjects in these respects, we have a\nproof in the conduct of the Hebrews, among whom it was usual for half\nof the spoils to be given to those, who were engaged in battle. In\nthe same manner the soldiers of Alexander were allowed to appropriate\nto themselves whatever they took from individuals, except that it was\nusual for a considerable portion to be set apart for the king. So that\nit was made a subject of accusation against those at Arbela, who were\nsaid to have entered into a conspiracy for securing to themselves every\nthing that was taken, without contributing a due proportion of it to\nthe treasury.\n\nBut individuals were not allowed in the same manner to appropriate to\nthemselves the public property of an enemy, that is, such as belonged\nto the state. Thus when the Macedonians made themselves masters of the\ncamp of Darius at the river Piramus, and every thing was given up to\nplunder, they spared the royal pavilion, in conformity to an ancient\ncustom, \"according to which, _as Curtius observes_, it was always\nreserved as the properest place, in which the victorious prince could\nbe received.\"\n\nThere was a custom somewhat like this among the Hebrews who always\nplaced the crown of the vanquished king upon the head of the conqueror,\nand assigned to him every thing that was taken, belonging to the royal\nhousehold. We read of the same conduct in Charles the great, who, upon\nconquering the Hungarians, gave up the private property as plunder to\nthe soldiers, reserving for the royal use all the public treasures.\n\nSome things indeed are too inconsiderable to be made public property.\nIt is a generally received maxim for such things to belong to the\nindividual captors.[64]\n\nThis was the practice in the ancient times of the Roman republic. A\nprivilege not unlike this is sometimes given to seamen, who serve for\npay. It is what the French call spoils, or pillage, including all\nwearing apparel, and all gold and silver under the value of ten crowns.\n\nOn this point different customs prevail in different countries. In\nSpain sometimes a fifth, and sometimes a third was allowed to the\nsoldiers, and at others half was reserved for the crown. On some\noccasions, a seventh or tenth part was allowed to the general, and\nthe rest belonged to the captors, except ships of war, which belong\nentirely to the crown.--Sometimes a division was made in proportion to\nthe hazard and expence: which was the case among the Italians, where\nthe third part of the prize was assigned to the owner of the victorious\nvessel, another third to those who had merchandise on board, and the\nremaining third to the combatants.\n\nIn some cases it happens that private adventurers are not allowed the\nwhole of their captures, a certain portion of which must go to the\nstate or to those, who have received a grant of such prizes from the\nstate. Thus in Spain, if in time of war ships are fitted out by private\npersons, one part of the captures, which they make belongs to the\ncrown, and another to the Lord High Admiral. So likewise in France, and\nHolland, the tenth part of a prize belonged to the Admiral, a fifth\nalso being previously deducted for the use of the state. But by land\nit is customary upon the taking of towns, and in battles, for every\none to keep the prizes which he takes. But in excursions, every thing\ntaken becomes the common stock of all engaged, being afterwards divided\namongst them according to their respective ranks.\n\nXXV. As a consequence deducible from the above positions, it may be\nobserved, that if a people not engaged in war be made mediators in a\ndoubtful matter respecting things captured in war, the cause must be\nadjudged in favour of him, who has on his side the laws and customs of\nthe country, which he has espoused. But if no such right can be proved,\nthe prize must be adjudged to the state, rather than to the individual\ncaptor.--The maxim indeed of Quintilian can never be admitted, that\nthe laws of war can never be enforced in matters, that may be decided\nby judicial authority; and that, on the other hand, whatever has been\ngained by arms can be maintained by force of arms alone.\n\nXXVI. It was observed in a former part of this chapter, that things,\nNOT BELONGING to an enemy, cannot be taken, although found with him.\nFor this is neither consonant to natural justice, nor introduced by\nthe law of nations. But if in those things the enemy had any right\nconnected with possession, such as the right of pledge, retention or\nservice, that would not obstruct the power of the captors.\n\nIt is a disputed point, both as to persons and things, whether they can\nbe lawfully taken in the territory of a power at war with neither of\nthe belligerents. In regard ONLY to the law of nations, as far as it\nallows us to kill an enemy wherever he is found, the PLACE has nothing\nto do with the question. But considering the rights of the sovereign,\nto whom that territory belongs, he undoubtedly has a right to forbid\nthe seizure of persons, or the capture of things within his own\ndominions: and may demand satisfaction for the violation of that right.\nIn the same manner, though beasts, that are wild by nature, become the\nproperty of those, who take them, still an owner may forbid any one to\ncommit a trespass upon his lands in order to take them.\n\n\n\n\nCHAPTER VII.\n\nON THE RIGHT OVER PRISONERS OF WAR.\n\n By the law of nations, slavery the result of being taken in solemn\n war--The same condition extends to the descendants of those\n taken--The power over them--Even incorporeal things may be gained\n by the rights of war--Reason of this--This right not prevalent to\n the same extent among Christian powers of the present day--The\n substitute used in place of this right.\n\n\nI. By the law of nature, in its primaeval state; apart from human\ninstitutions and customs, no men can be slaves: and it is in this sense\nthat legal writers maintain the opinion that slavery is repugnant to\nnature. Yet in a former part of this treatise, it was shewn that there\nis nothing repugnant to natural justice, in deriving the origin of\nservitude from human actions, whether founded upon compact or crime.\n\nBut the law of nations now under consideration is of wider extent both\nin its authority over persons, and its effects. For, as to persons,\nnot only those, who surrender their rights, or engage themselves\nto servitude, are considered in the light of slaves, but all, who\nare taken prisoners in public and solemn war, come under the same\ndescription from the time that they are carried into the places, of\nwhich the enemy is master.\n\nNor is the commission of crime requisite to reduce them to this\ncondition, but the fate of all is alike, who are unfortunately taken\nwithin the territories of an enemy, upon the breaking out of war.\n\nII. and III. In ancient times, while slavery was permitted to exist,\nthe offspring, born during captivity or servitude, continued in the\nsame condition as the parents.--The consequences of such rules were of\nwide extent;--there was no cruelty, which masters might not inflict\nupon their slaves;--there was no service, the performance of which they\nmight not compel;--the power even of life and death was in their hands.\nHowever the Roman laws at length set bounds to such wanton power, at\nleast to the exercise of it within the Roman territories.\n\nEvery thing too, found upon the prisoner's person, became a lawful\nprize to the captor. For as Justinian observes, one who was entirely in\nthe power of another could have no property of his own.\n\nIV. and V. Incorporeal rights, gained by the enemy, along with the\nperson so captured, cannot be considered in the light of primary and\noriginal acquisitions. And there are some rights so purely personal\nin their nature, that they cannot be lost even by captivity, nor the\nduties attached thereto ever be relinquished. Of such a nature was the\npaternal right among the Romans. For rights of this kind cannot exist\nbut immediately with the person to whom they originally belonged.\n\nAll these rights to prizes, which were introduced by the law of\nnations, were intended as an inducement to captors to refrain from\nthe cruel rigour of putting prisoners to death; as they might hope\nto derive some advantage from sparing and saving them. From hence\nPomponius deduces the origin of the word, SERVUS, or SLAVE, being one,\nwho might have been put to death, but from motives of interest or\nhumanity had been saved.\n\nVI. (being the IX. of the original.) It has long been a maxim,\nuniversally received among the powers of Christendom, that prisoners\nof war cannot be made slaves, so as to be sold, or compelled to the\nhardships and labour attached to slavery. And they have with good\nreason embraced the latter principle. As it would be inconsistent with\nevery precept of the law of charity, for men to refuse abandoning a\ncruel right, unless they might be allowed to substitute another, of\ngreat, though somewhat inferior rigour, in its place.\n\nAnd this, as Gregoras informs us, became a traditionary principle\namong all who professed one common religion; nor was it confined\nto those, who lived under the authority of the Roman empire, but\nprevailed among the Thessalians, the Illyrians, the Triballians, and\nBulgarians.--Though such an abolition of slavery, and mitigation of\ncaptivity may be considered as of trivial import, yet they were effects\nproduced by the introduction of the Christian religion, especially upon\nrecollection that Socrates tried, but without effect, to prevail upon\nthe Greeks to forbear making slaves of each other.\n\nIn this respect the Mahometans act towards each other in the same\nmanner as Christians do. Though it is still the practice among\nChristian powers to detain prisoners of war, till their ransom be paid,\nthe amount of which depends upon the will of the Conqueror, unless\nit has been settled by express treaty. The right of detaining such\nprisoners has sometimes been allowed to the individuals, who took them,\nexcept where the prisoners were personages of extraordinary rank, who\nwere always considered as prisoners of war to the state.\n\n\n\n\nCHAPTER VIII.\n\nON EMPIRE OVER THE CONQUERED.\n\n Civil and sovereign jurisdiction acquired by conquest--Effects\n of such acquisition--Absolute power or mixed power gained\n by conquest--Incorporeal rights acquired in the same\n manner--Thessalian bond considered.\n\n\nI. If individuals can reduce each other to subjection, it is not\nsurprising that states can do the same, and by this means acquire\na civil, absolute, or mixed, dominion. So that, in the language of\nTertullian, victory has often been the foundation of dominion, and it\noften happens, as Quintilian remarks, that the boundaries of states and\nkingdoms, of nations and cities, can only be settled by the laws of war.\n\nQuintus Curtius relates of Alexander, that he said, it was for\nconquerors to dictate laws, which the conquered were bound to receive.\nThis has always been a general opinion and rule, thus Ariovistus, in\nCaesar, laid it down as an indubitable right of war, for the conqueror\nto impose whatever terms he pleased upon the conquered, nor did he\nsuppose the Roman people would allow any one to interpose with them in\nthe discretionary use of this right.\n\nBy conquest, a prince succeeds to all the rights of the conquered\nsovereign or state; and if it be a commonwealth, he acquires all the\nrights and privileges, which the people possessed. He gains the same\nright, which the state had before, to alienate the possessions, or to\ntransmit them if he chuses to his descendants, by which means they will\nbecome a patrimonial territory.\n\nII. The right of conquest may go even beyond this. A state may hereby\nlose its political existence, so far as to form an appendage to another\npower, which was the case with the Roman provinces: or if a king\nengaged in war against a state, at his own expence, has reduced it to\ncomplete subjection, his authority over it becomes an absolute, rather\nthan a limited sovereignty. It can no longer be called an independent\nstate, but, by the right of conquest, forms an integral part of the\nprince's immediate dominions. Xenophon in drawing the character of\nAgesilaus, commends him for requiring no other services and obedience\nof the cities he had conquered, than what is usually paid by subjects\nto their lawful sovereigns.\n\nIII. From hence it will be easy to understand what is meant by a mixed\ngovernment, composed partly of civil, and partly of absolute power;--it\nis a government, where subjection is united with some degree of\npersonal liberty.\n\nWe sometimes read of nations, that have been so far subdued, as to be\ndeprived of the use of all warlike arms, being allowed to retain no\ninstruments of iron, but the implements of husbandry; and of others,\nthat have been compelled to change their national customs and language.\n\nIV. States as well as individuals may lose their property by the laws\nof war: and even a voluntary surrender is in reality nothing more\nthan giving up what might have been taken by force. For as Livy says,\nwhere all things submit to the power of arms, the conqueror may impose\nwhatever terms, and exact whatever fines he pleases. Thus the Roman\npeople by the victories of Pompey acquired all the territories, which\nMithridates had gained by conquest.\n\nThe incorporeal rights too, belonging to one state, may pass to another\nby the rights of conquest. Upon the taking of Alba, the Romans retained\nall the rights belonging to that city. From hence it follows, that the\nThessalians were released from the obligation of paying a sum of money,\nwhich they owed to the Thebans; Alexander, upon the taking of Thebes,\nhaving, as a conqueror, forgiven the debt. Nor is the argument used by\nQuintilian in favour of the Thebans, at all convincing: he maintains\nthat nothing but what is of a tangible nature can pass by right of\nconquest, a class of things to which incorporeal rights can never be\nreduced: and that there is a material difference between inheritance\nand victory, the former of which may convey incorporeal rights, but the\nlatter can give nothing except things of a solid and visible substance.\n\nBut on the other hand it may be justly said, that whoever is master of\nthe persons, is master also of all the rights and things, which are\nvested in those persons, who are in that case considered as having\nnothing of their own. Indeed if any one should leave to a conquered\npeople their rights, as a state, still there are some things belonging\nto that state, which he might appropriate to himself. For it is in his\nown power to determine, to what extent his generosity, or the exertion\nof his right shall go. Caesar imitated the conduct of Alexander, in\nforgiving the Dyrrachians a debt, which they owed to some one of the\nopposite party. But the kind of war, in which Caesar was engaged does\nnot fall within the rules of the law of nations.\n\n\n\n\nCHAPTER IX.\n\nOF THE RIGHT OF POSTLIMINIUM.\n\n Origin of the term, postliminium--Where it takes effect--Certain\n things recoverable thereby--In what cases the right of postliminium\n prevails in peace, as well as war--What rights are recoverable,\n and what rights not recoverable--When a people is not entitled\n to the right of postliminium--Extent of civil law in these\n cases--Deserters--Ransomed prisoners--Subjects--Lands recovered by\n right of postliminium--Distinction formerly observed with respect\n to movable things--Modern practice.\n\n\nI. The professors of law in former ages have given no more satisfactory\naccount of the rights of postliminium, than they have done of those,\nrespecting things taken from the enemy. The subject has been more\naccurately handled by the ancient Romans, but often still with a\nconsiderable degree of confusion, so that a reader cannot easily\ndistinguish, what part they assign to the province of the law of\nnations, and what part to the civil law of Rome.\n\nAmidst a great variety of opinions, upon the meaning of the word,\npostliminium, that of Scaevola seems the most natural, who derives it\nfrom the word _post_, signifying a return after captivity, and _limen_\nthe boundary or entrance of the house, or from _limes_, a public\nboundary. Thus the ancients called exile or banishment, _eliminium_,\nthat is, sending any one out of the boundaries of the country.\n\nII. Postliminium therefore, according to its original signification,\nmeans the right, accruing to any one in consequence of his return\nhome from captivity. Pomponius defines the right of postliminium to\ntake place the moment any one enters a town or garrison, of which his\nsovereign is master; but according to Paulus he must have entered\nwithin the territories of his own country before he can be entitled to\nthat right.\n\nUpon this principle nations have, in general, gone so far, as to allow\nthe right of postliminium to take place, where any person, or indeed\nany thing, coming within the privileges of postliminium, have arrived\nwithin the territory of a friendly or allied power.\n\nBy the term friends, or allies, used in this place, are not simply\nmeant, those who are at peace with another power, but those who are\nengaged in the same war, and in a common cause with that power. So that\nall, who have come into the territories of such powers, are protected\nunder the pledge of public faith. For it makes no difference with\nrespect to persons or things, whether they are in the territories of\nthose powers, or in their own.\n\nIn the territory of a friendly power, who is not engaged in the same\ncause with either of two belligerent parties, prisoners of war do not\nchange their condition, unless it has been agreed to the contrary\nby express treaty; as in the second treaty between the Romans and\nCarthaginians, it was stipulated that if any prisoners, taken by the\nCarthaginians from powers friendly to the Romans, should come into\nports subject to the Roman people, their liberty might be claimed:\nand that powers friendly to the Carthaginians should enjoy the same\nprivilege. For this reason, the Roman prisoners taken in the second\nPunic war, when sent into Greece, had not the right of postliminium\nthere, the Greeks being entirely neutral, consequently they could not\nbe released, till they were ransomed.\n\nIII. According to the language of the ancient Romans, even free men\nmight be restored by the right of postliminium.\n\nGallus \u00c6lius, in the first book of his explanation of law-terms,\ndefines a person restored to his original situation by the right of\npostliminium, to be one, who had gone from his own country, in a free\ncondition, to another, and returned to his own in consequence of such\nright. By the right of postliminium a slave also who has fallen into\nthe hands of an enemy, upon his release from thence, returns to the\nservice of his former master.\n\nAs to the law of postliminium, horses, mules, and ships are considered\nin the same light as slaves. And whatever advantage this law gives any\none in recovering persons or things from an enemy, the enemy in his\nturn has equal advantage from the same law.\n\nBut modern lawyers have made a distinction between two kinds of\npostliminium, by one of which, persons returned to their former\ncondition, and by the other, things are recovered.\n\nIV. The right of postliminium may extend to those, who are seized and\ndetained in an enemy's country upon the breaking out of war. For though\nduring the continuance of that war, there may be reason for detaining\nthem, in order to weaken the enemy's strength, yet, upon the conclusion\nof a peace, no such motive and pretence can be devised for their\nrelease being refused or delayed. It is a settled point therefore that\nupon peace being made, prisoners of the above description always obtain\ntheir liberty, their claim to it being universally acknowledged.\n\nWith respect to other kinds of prisoners, every one used what he wished\nto be thought his right, except where fixed rules were prescribed by\ntreaty. And for the same reason, neither slaves, nor things taken in\nwar are restored upon a peace, except express stipulations be made to\nthat purpose. A conqueror too, in general, wishes to have it believed\nthat he had a right to make such acquisition; and indeed the departure\nfrom such a rule might give rise to wars without end.\n\nV. and VI. A prisoner of war, upon his release, and return to his\nown country, is entitled to all his privileges THERE, and indeed to\neverything either corporeal, or incorporeal, which he might have before\npossessed in a NEUTRAL STATE, at the time of his captivity. For if such\na state, in order to preserve her neutrality, considered his captivity\nas a matter of right on the part of the enemy, so also, in order to\nshew her impartiality, she cannot lawfully abridge his right to any\nthing he may reclaim upon his release. The controul therefore, which\nthe person, to whom the prisoner belonged by the right of war, had\nover his effects, was not absolutely unconditional: for he might lose\nit, even against his will, whenever the prisoner came again under the\nprotection, or within the territories, of his own sovereign. Along with\nthe prisoner therefore he would lose everything, which was considered\nas an appendage to his person.\n\nIn cases where effects taken in war have been alienated, a question\narises, whether the law of nations confirms the title, and secures the\npossession of the person, who has derived or purchased them from him,\nwho was master of them by the rights of war, by having the prisoner\nin his custody at the time of alienation, or whether such things are\nrecoverable; supposing the things to be in a neutral territory.\n\nA distinction seems proper to be made between things recoverable by\npostliminium, and things excepted from that right: so that every\nalienation of the former must be qualified and conditional, but that\nof the latter may be absolute. By things alienated may be understood\neven those, of which a gift has been made, or to which the owner has\nrelinquished every claim.\n\nVII. Upon any one's returning to his former condition by the law of\npostliminium, all his rights are restored as fully, as if he had never\nbeen in the hands and power of the enemy.\n\nVIII. The case of those however, who have been conquered by the arms of\nan enemy, and have surrendered themselves, forms an exception to this\nrule; because engagements of that kind must be valid, and honourably\nadhered to according to the law of postliminium. So that during the\ntime of a truce, the right of postliminium cannot be claimed.\n\nBut where a surrender has been made without any express or positive\nconvention the right of postliminium exists in all its force.\n\nIX. What has been said of individuals applies to nations: so that a\nfree people, who have been subjugated, upon being delivered from the\nyoke of the enemy by the power of their allies, will recover their\nformer condition.\n\nBut if the whole population that constituted a state has been\ndispersed, the people can no longer be considered as the same: nor does\nthe law of nations in such a case enforce the right of postliminium\nfor the restoration of all effects formerly belonging to that people.\nFor as the identity of a ship, or any other material object, can\nonly be ascertained by the permanent union of its original parts: so\na nation can no longer be regarded as the same, when every peculiar\ncharacteristic belonging to it is effaced.\n\nThe state of Saguntum therefore was no longer judged to be the same,\nwhen it was restored to its ancient possessors, at the expiration of\neight years: nor could Thebes any longer be deemed the original city,\nas its inhabitants had been sold by Alexander for slaves. From hence it\nis evident, that the Thebans could not, by the right of postliminium,\nrecover the sum of money, which the Thessalians had owed them: and that\nfor two reasons: because, in the first place, they were a new people;\nand, secondly, because Alexander at the time that he was absolute\nmaster of the city had a right, if he thought proper, to relinquish the\nclaim to that debt, which he had actually done. Besides, a debt is not\nin the number of things recoverable by the right of postliminium.\n\nThe rules, respecting a state, are not much unlike those laid down by\nthe ancient Roman law, which made marriage a dissoluble tie, so that it\ncould not be restored by the right of postliminium: but a new consent,\nand a new contract were necessary.\n\nX. By the Roman civil law deserters were excluded from the right of\npostliminium.\n\nXI. and XII. It is a point of much importance to the subject, and it\nwas before declared in the affirmative, that nations, which have been\nunder a foreign yoke, recover their former condition, even though their\ndeliverance has not been effected by their former sovereign, but by\nsome ally. It is a settled rule, where there is no express treaty to\nthe contrary. At the same time it is but reasonable that such ally be\nindemnified for the expences incurred in accomplishing that deliverance.\n\nXIII. Among things within the right of postliminium, lands in\nparticular attract our attention. For, as Pomponius observes, upon the\nexpulsion of an enemy lands naturally revert to their former masters.\nAnd in this sense expulsion is understood to take place from the time\nthat his free and open access to a territory is entirely cut off.\n\nThus the Lacedaemonians, after taking Aegina from the Athenians,\nrestored it to its ancient owners. Justinian and other emperors\nrestored to the heirs of the ancient possessors of the lands, which\nhad been recovered from the Goths and Vandals, still reserving against\nthose owners all prescriptive rights, which the Roman laws had\nintroduced.\n\nThe privileges belonging to lands attach to every right also connected\nwith the soil. For religious or consecrated places, that had been taken\nby an enemy, when recovered returned, as Pomponius has said, to their\nformer condition.\n\nUpon the same principle it was provided by a law in Spain, that\nprovinces, and all other hereditary jurisdictions, particularly supreme\njurisdictions, should return to the original possessors by the right of\npostliminium; and those of an inferior kind, if reclaimed within the\nspace of four years. Except that citadels lost by war always belonged\nto the crown, in whatever manner they were recovered.\n\nXIV. On the contrary a general opinion prevails, that moveable\nproperty, which constitutes part of a lawful prize, is not recoverable\nby the right of postliminium. So that things acquired by purchase,\nwherever they are found, continue the property of the purchaser. Nor\nhas the original owner a right to claim them, when found in a neutral\nstate, or even carried into his own territory.\n\nThings useful in war, as we find, were formerly an exception to this\nrule: an exception, which seems to have been favoured by the law of\nnations in order to induce men the more readily to provide them, in\nthe hopes of recovering them, if lost. And this indulgence was the\nmore easily granted, as most nations, at that period, in all their\ncustoms, seem to have had an eye to a state of warfare.--Among the\nthings, coming under this description, ships of war, and merchant-ships\nare reckoned, but neither gallies, nor pleasure-boats: mules also are\nenumerated; but only such as are used to carry baggage: horses and\nmares too; but only such as are broken in to obey the bridle. And these\nare things, the bequest of which the Roman law confirmed, and which\nmight come into the division of an inheritance.\n\nArms and cloathing indeed are useful in war, but still they were not\nrecoverable by the right of postliminium; because the laws were by no\nmeans inclined to favour those, who lost either in war: and such a\nloss was deemed a disgrace, as we find from many parts of history. And\nin this respect, a distinction was made between a soldier's arms and\nhis horse: because the latter might easily break loose, and fall into\nan enemy's hands without any fault of his rider. This distinction in\nmoveable things seems to have prevailed in the western parts of Europe,\nunder the Goths, even as far down as to the times of Boetius. For in\nexplaining the Topics of Cicero, he speaks of this right, as a general\ncustom of his day.\n\nXV. But in later times, if not before, this distinction seems to have\nbeen abolished. For all intelligent writers speak of moveable effects\nas not recoverable by the right of postliminium, and it has evidently\nbeen decided so, in many places, with respect to ships.\n\nXVI. The right of postliminium is quite unnecessary, before the things\ntaken have been carried into some place of which the enemy is master,\nalthough they may be in his possession: for they have not yet changed\ntheir owner, by the law of nations. And, according to the opinions of\nUlpian and Javolenus, the law of postliminium is no less superfluous,\nwhere goods have been taken by robbers and pirates, because the law\nof nations does not allow THEIR possession of the goods to convey any\nchange, or right of property to THEM.\n\nUpon this ground, the Athenians wished to consider Philip, as\nRESTORING, and not GIVING them Halonesus, of which they had been robbed\nby pirates, from whom he had taken it again. For things taken by\npirates may be reclaimed, wherever they are found; except that NATURAL\nJUSTICE requires that the person, who has gained them out of their\nhands, at his own expence, should be indemnified, in proportion to what\nthe owner himself would willingly have spent for their recovery.\n\nXVII. But a different maxim may be established by the CIVIL LAW. Thus\nby the law of Spain, ships taken from pirates become the lawful prize\nof the captors: which may seem a hardship upon the original owners;\nbut in some cases individual interest must be sacrificed to the public\ngood: especially where the danger and difficulty of retaking the ships\nis so great.[65] But such a law will not prevent foreigners from\nasserting their claims.\n\nXVIII. It was rather a surprising maxim in the Roman law, which\nestablished the right of postliminium, not only between hostile powers,\nbut between all foreign states, and, in some cases, between those, who\nwere members of the Roman empire. But this was only a vestige of the\nrude and pastoral ages, before society was perfectly formed. So that\neven between nations, who were not engaged in public war with each\nother, a kind of licence resembling that of war prevailed.\n\nIn order to prevent such a licence from proceeding to all the\ncalamities and slaughter of war, the laws of captivity were introduced:\nand, as a consequence of this, postliminium took place, which might be\nconsidered as a great step towards the formation of equal treaties,\nfrom the rules of which pirates and robbers were excluded, and which\nindeed they themselves despised.\n\nXIX. In our times, the right of making prisoners, except in war, has\nbeen abolished not only among Christian states, but even among the\ngreater part of Mahometans, those bands of society, which nature\ndesigned to establish amongst men, being in some measure restored.\n\nBut the ancient law of nations seems still in force against any rude\nor barbarous people, who, without any declaration or cause of war,\nconsider all mankind as enemies. A decision has lately been made in the\nprincipal chamber of the parliament of Paris, declaring all effects\nbelonging to the subjects of France, and taken by the Algerines, a\npeople always engaged in predatory and maritime warfare with all other\ncountries, if retaken, to belong to the captors.--At the same time it\nwas decided, that, in the present day, ships are not reckoned among\nthings recoverable by the right of postliminium.\n\n\n\n\nCHAPTER XI.[66]\n\nTHE RIGHT OF KILLING ENEMIES, IN JUST WAR, TO BE TEMPERED WITH\nMODERATION AND HUMANITY.\n\n In what cases strict justice allows the destruction of an\n enemy--Distinction between misfortune and guilt--Between principals\n and accessories in war--Distinction between unwarrantable and\n excusable grounds of promoting war--Sometimes right and laudable to\n forbear punishing an inveterate enemy--Every possible precaution\n requisite to spare the innocent--Especially children, women, and\n the aged, except they have committed atrocious acts--Clergymen, men\n of letters, husbandmen, merchants, prisoners--Conditional surrender\n not to be rejected--Unconditional surrender--Exceptions to the\n above rules, some of them considered, and refuted--Delinquents when\n numerous to be spared--Hostages to be spared--Unnecessary effusion\n of blood to be avoided.\n\n\nI. and II. Cicero, in the first book of his offices, has finely\nobserved, that \"some duties are to be observed even towards those, from\nwhom you have received an injury. For even vengeance and punishment\nhave their due bounds.\" And at the same time he extols those ancient\nperiods in the Roman government, when the events of war were mild, and\nmarked with no unnecessary cruelty.\n\nThe explanations given in the first chapter of this book will point\nout the cases, where the destruction of an enemy is one of the rights\nof lawful war, according to the principles of strict and internal\njustice, and where it is not so. For the death of an enemy may proceed\neither from an accidental calamity, or from the fixed purpose of his\ndestruction.\n\nNo one can be justly killed by design, except by way of legal\npunishment, or to defend our lives, and preserve our property, when it\ncannot be effected without his destruction. For although in sacrificing\nthe life of man to the preservation of perishable possessions, there\nmay be nothing repugnant to strict justice, it is by no means consonant\nto the law of charity.\n\nBut to justify a punishment of that kind, the person put to death must\nhave committed a crime, and such a crime too, as every equitable judge\nwould deem worthy of death. Points, which it is unnecessary to discuss\nany further, as they have been so fully explained in the chapter on\npunishments.\n\nIII. In speaking of the calamities of war, as a punishment, it is\nproper to make a distinction between misfortune and injury. For a\npeople may sometimes be engaged in war against their will, where they\ncannot be justly charged with entertaining hostile intentions.\n\nUpon this subject, Velleius Paterculus observes that \"to blame the\nAthenians for revolting, at the time they were besieged by Sylla,\nbetrays a total ignorance of history. For the Athenians always\ncontinued so steady in their attachment to the Romans, that their\nfidelity became a proverbial expression. Yet their situation at that\ntime excused their conduct, overpowered by the arms of Mithridates,\nthey were obliged to submit to a foe within, while they had to sustain\na siege from their friends without.\"\n\nIV. and V. Between complete injuries and pure misfortunes there may be\nsometimes a middle kind of actions, partaking of the nature of both,\nwhich can neither be said to be done with known and wilful intention,\nnor yet excused under colour of ignorance and want of inclination. Acts\nof pure misfortune neither merit punishment, nor oblige the party to\nmake reparation for the loss occasioned. Hence many parts of history\nsupply us with distinctions that are made between those who are the\nauthors of a war, and principals in it, and those who are obliged to\nfollow others, as accessories in the same.\n\nVI. But respecting the authors of war, a distinction is to be made\nalso, as to the motives and causes of war: some of which though not\nactually just, wear an appearance of justice, that may impose upon\nthe well meaning. The writer to Herennius lays it down as the most\nequitable vindication of injury, where the party committing it, has\nneither been actuated by revenge, nor cruelty; but by the dictates of\nduty and an upright zeal.\n\nCicero, in the first book of his offices, advises the sparing of those,\nwho have committed no acts of atrocity and cruelty in war, and that\nwars, undertaken to maintain national honour, should be conducted upon\nprinciples of moderation. And, in one of his letters, adverting to the\nwar between Pompey and Caesar, he describes the struggle between those\ntwo illustrious men, as involved in so much obscurity of motives and\ncauses, that many were perplexed in deciding which side to embrace. In\nhis speech too for Marcellus, he remarks that such uncertainty might be\nattended with error, but could never be charged with guilt.\n\nVII. Such forbearance in war is not only a tribute to justice, it\nis a tribute to humanity, it is a tribute to moderation, it is a\ntribute to greatness of soul. It was in this moderation, says Sallust,\nthe foundation of Roman greatness was laid. Tacitus describes his\ncountrymen as a people no less remarkable for their courage in the\nfield, than for their humanity to the vanquished and suppliant.\n\nOn this subject, there is a brilliant passage in the fourth book\nto Herennius, where it is said, \"It was an admirable resolution of\nour ancestors, never to deprive a captive prince of his life. For\nit would be truly a violation of common justice to abuse, by wanton\ncruelty and rigour, the power over those, whom fortune has put into\nour hands, by reducing them from the high condition, in which she had\nplaced them before; their former enmity is forgotten. Because it is\nthe characteristic of bravery to esteem opponents as enemies, while\ncontending for victory, and to treat them as men, when conquered,\nin order to soften the calamities of war, and improve the terms and\nrelations of peace. But it may be asked, if the enemy now treated with\nthis indulgence would have shewn the same lenity himself. To which a\nreply may be made, that he is not an object of imitation in what he\nWOULD have done, so much as in what he OUGHT to have done.\"\n\nVIII. Though there may be circumstances, in which absolute justice will\nnot condemn the sacrifice of lives in war, yet humanity will require\nthat the greatest precaution should be used against involving the\ninnocent in danger, except in cases of extreme urgency and utility.\n\nIX. After establishing these general principles, it will not be\ndifficult to decide upon particular cases. Seneca says, that \"in the\ncalamities of war children are exempted and spared, on the score\nof their age, and women from respect to their sex.\" In the wars of\nthe Hebrews, even after the offers of peace have been rejected, God\ncommands the women and children to be spared.\n\nThus when the Ninevites were threatened with utter destruction, on\naccount of their grievous crimes, a mitigation of the sentence was\nallowed, in compassion to the many thousands, who were of an age\nincapable of making a distinction between right and wrong.\n\nIf God, from whose supreme gift the life of man proceeds, and on whose\nsupreme disposal it depends, prescribes to himself a rule like this,\nit is surely incumbent upon men, who have no commission, but for the\nwelfare and preservation of the lives of men, to act by the same rule.\nThus age and sex are equally spared, except where the latter have\ndeparted from this privilege by taking arms, or performing the part of\nmen.\n\nX. The same rule may be laid down too with respect to males, whose\nmodes of life are entirely remote from the use of arms. And in the\nfirst class of this description may be placed the ministers of\nreligion, who, among all nations, from times of the most remote\nantiquity have been exempted from bearing arms.--Thus, as may be seen\nin sacred history, the Philistines, being enemies of the Jews, forbore\ndoing harm to the company of prophets, that was at Gaba: and David fled\nwith Samuel to another place, which the presence of a prophetic company\nprotected from all molestation and injury.\n\nPlutarch relates of the Cretans, that when all order among them was\nentirely broken by their civil broils, they abstained from offering\nviolence to any member of the priesthood, or to those employed in the\nsacred rites belonging to the dead. From hence the Greeks came to\ndenote a GENERAL MASSACRE by the proverbial expression of NO ONE BEING\nLEFT TO CARRY FIRE TO THE ALTAR.\n\nEqually privileged with the holy priesthood are those, who devote\ntheir lives to the pursuit of letters, and other studies beneficial to\nmankind.\n\nXI. Diodorus bestows an encomium upon the Indians, who, in all their\nwars with each other, forbore destroying or even hurting those employed\nin husbandry, as being the common benefactors of all. Plutarch relates\nthe same of the ancient Corinthians and Megarensians, and Cyrus sent\na message to the king of Assyria to inform him that he was willing to\navoid molesting all who were employed in tilling the ground.\n\nXII. To the above catalogue of those exempted from sharing in the\ncalamities of war, may be added merchants, not only those residing for\na time in the enemy's country, but even his natural-born, and regular\nsubjects: artisans too, and all others are included; whose subsistence\ndepends upon cultivating the arts of peace.\n\nXIII. and XIV. More civilized manners having abolished the barbarous\npractice of putting prisoners to death, for the same reason, the\nsurrender of those, who stipulate for the preservation of their lives\neither in battle, or in a siege, is not to be rejected.\n\nThe Romans, when investing towns, always accepted offers of\ncapitulation, if made before the battering ram had touched the walls.\nCaesar gave notice to the Atuatici, that he would save their city,\nif they surrendered, before the battering ram was brought up. And in\nmodern times it is the usual practice, before shells are thrown, or\nmines sprung, to summon places to surrender, which are thought unable\nto hold out--and where places are stronger, such summons is generally\nsent, before the storming is made.\n\nXV. and XVI. Against these principles of natural law and equity an\nobjection is sometimes derived from the necessity of retaliation,\nor striking terror, in cases of obstinate resistance. But such an\nobjection is by no means just. For after a place has surrendered, and\nthere is no danger to be apprehended from the prisoners, there is\nnothing to justify the further effusion of blood.--Such rigour was\nsometimes practised, where there were any enormous acts of injustice,\nor any violation of faith; it was practised also upon deserters, if\ntaken.\n\nSometimes, where very important advantages may attend striking a\nterror, by preventing the same crimes in future from being committed,\nit may be proper to exercise the right of rigour in its full extent.\nBut an obstinate resistance, which can be considered as nothing but the\nfaithful discharge of a trust, can never come within the description of\nsuch delinquencies, as justify extreme rigour.\n\nXVII. Where delinquencies indeed are such as deserve death, but the\nnumber of offenders is very great, it is usual, from motives of mercy,\nto depart in some degree from the right of enforcing the whole power\nof the law: the authority for so doing is founded on the example of\nGod himself, who commanded such offers of peace to be made to the\nCanaanites, and their neighbours, the most wicked of any people upon\nthe face of the earth, as might spare their lives upon the condition of\ntheir becoming tributaries.\n\nXVIII. From the opinions advanced and maintained above, it will not\nbe difficult to gather the principles of the law of nature respecting\nhostages.\n\nAt the time, when it was a general opinion that every one had the same\nright over his life, as over his property, and that right, either by\nexpress or implied consent was transferred from individuals to the\nstate, it is not surprising that we should read of hostages, though\nharmless and innocent as individuals, being punished for the offences\nof the state: and, in this case, the consent of the state to such a\nregulation implies that of individuals, who have originally resigned\ntheir own will to that of the public; in whom, after such resignation,\nit indubitably vested.\n\nBut when the day-spring rose upon the world, men, obtaining clearer\nviews of the extent of their power, found that God, in giving man\ndominion over the whole earth, reserved to himself the supreme disposal\nof his life, so that man cannot resign to any one the right over his\nown life or that of another.\n\nXIX. By way of conclusion to this subject it may be observed, that all\nactions no way conducive to obtain a contested right, or to bring the\nwar to a termination, but calculated merely to display the strength\nof either side are totally repugnant to the duties of a Christian and\nto the principles of humanity. So that it behoves Christian princes\nto prohibit all unnecessary effusion of blood, as they must render an\naccount of their sovereign commission to him, by whose authority, and\nin whose stead, they bear the sword.\n\n\n\n\nCHAPTER XII.\n\nON MODERATION IN DESPOILING AN ENEMY'S COUNTRY.\n\n Lawfulness of despoiling an enemy's country--Forbearance of using\n this right, where things may be useful to ourselves, and out of\n an enemy's power--Forbearance in the hopes of speedy conquest, or\n where things are not immediately necessary to support an enemy,\n and aid him in maintaining the war--Buildings for the purposes\n of religion not to be wantonly destroyed--Advantages of this\n moderation.\n\n\nI. One of the three following cases is requisite to justify any one\nin destroying what BELONGS to another: there must be either such a\nnecessity, as at the original institution of property might be supposed\nto form an exception, as if for instance any one should throw the\nsword of another into a river, to prevent a madman from using it to\nhis destruction: still according to the true principles maintained in\na former part of this work he will be bound to repair the loss:[67]\nor there must be some debt, arising from the non-performance of an\nengagement, where the waste committed is considered as a satisfaction\nfor that debt: or there must have been some aggressions, for which such\ndestruction is only an adequate punishment.\n\nNow, driving off some of our cattle, or burning a few of our houses,\ncan never be pleaded as a sufficient and justifiable motive for laying\nwaste the whole of an enemy's kingdom. Polybius saw this in its proper\nlight, observing, that vengeance in war should not be carried to its\nextreme, nor extend any further than was necessary to make an aggressor\natone justly for his offence. And it is upon these motives, and within\nthese limits alone, that punishment can be inflicted. But except where\nprompted to it by motives of great utility, it is folly, and worse than\nfolly, wantonly to hurt another.\n\nBut upon duly and impartially weighing the matter, such acts are\noftener regarded in an odious light, than considered as the dictates of\nprudent and necessary counsels. For the most urgent and justifiable\nmotives are seldom of long continuance, and are often succeeded by\nweightier motives of a more humane description.\n\nII. It may be possible, under some circumstances, to detain what\nbelongs to an enemy so as to prevent his deriving advantage from it,\nin which case it would be an unnecessary and wanton act to destroy it.\nAnd to such circumstances the divine law has an eye, in ordering wild\ntrees to be made use of for the construction of works in a siege, while\nfruit-trees, and every thing necessary for the support of man, ought,\nif possible, to be spared.\n\nIII. Where there is an expectation also of speedy victory and conquest,\nprudence will dictate to a general or commander of any kind the\nnecessity of forbearing from all acts of destruction, by authorising\nand committing which he would only be injuring those possessions, that\nare likely to come into the hands of his own state or sovereign. Thus,\nas we are informed by Plutarch, when Philip had overrun Thessaly,\ndestroying and plundering the whole country, Flaminius ordered his\ntroops to march in a regular manner, as through a ceded country which\nhad become their own.\n\nIV. In the next place, it is unnecessary to destroy an enemy's country,\nwhen he has other sources, from which he can draw his supplies, as\nfor instance, the sea or any adjoining territory. Archidamus, in\nThucydides, attempting to dissuade the Lacedaemonians from a war with\nthe Athenians, asks them, what object they propose to themselves by\nsuch a war? he asks them if they suppose that Attica can easily be laid\nwaste owing to the advantage, which their troops have in superiority\nand numbers? but, says he, they have other dominions to furnish\nthem with supplies, and they can avail themselves also of maritime\nimportations. So that under such circumstances, it is best to leave\nagriculture unmolested, even on the frontiers of each side: a practice\nlately followed in the wars of the low countries, where contributions\nwere paid to both parties, in return for such protection.\n\nV. There are some things of such a nature, as to contribute, no way,\nto the support and prolongation of war: things which reason itself\nrequires to be spared even during the heat and continuance of war.\nPolybius calls it brutal rage and madness to destroy things, the\ndestruction of which does not in the least tend to impair an enemy's\nstrength, nor to increase that of the destroyer: Such are Porticos,\nTemples, statues, and all other elegant works and monuments of art.\nCicero commends Marcellus for sparing the public and private edifices\nof Syracuse, as if he had come with his army to protect THEM, rather\nthan to take the place by storm.\n\nVI. As this rule of moderation is observed towards other ornamental\nworks of art, for the reasons before stated, there is still greater\nreason, why it should be obeyed in respect to things devoted to the\npurposes of religion. For although such things, or edifices, being the\nproperty of the state may, according to the law of nations, be with\nimpunity demolished, yet as they contribute nothing to aggravate the\ncalamities, or retard the successes of war, it is a mark of reverence\nto divine things to spare them, and all that is connected therewith:\nand more especially should this rule be adhered to among nations,\nworshipping the same God according to the same fundamental laws,\nalthough differing from each other by slight shades of variation in\ntheir rights and opinions. Thucydides says that it was a law among the\nGreeks of his time, in all their invasions of each other's territories,\nto forbear touching the edifices of religion: and Livy likewise\nobserves that, upon the destruction of Alba by the Romans, the temples\nof the Gods were spared.\n\nVII. What has been said of the sacred edifices of religion applies also\nto monuments raised in honour of the dead, unnecessarily to disturb\nwhose ashes in their repose bespeaks a total disregard to the laws and\nties of our common humanity.\n\nVIII. Although it does not fall within the province of this treatise\nto inquire into the utility of war in all its various branches, but\nonly to regulate its practices by confining them within due and\nlawful bounds; yet it will not be improper to observe that rules and\npractices derive much of their merit from the utility, with which they\nare attended. So that one great quality, to recommend the moderation\nabove alluded to, will be found in its preventing the enemy from being\ndriven to those resources, which men never fail, at last, of finding\nin despair. It is a just remark made by some Theologians, that all\nCHRISTIAN princes and rulers, who wish to be found SUCH in the sight\nof God as well as that of men, will deem it a duty to interpose their\nauthority to prevent or to suppress all UNNECESSARY violence in the\ntaking of towns: for acts of rigour can never be carried to an extreme\nwithout involving great numbers of the innocent in ruin. And practices\nof that kind, besides being no way conducive to the termination of war,\nare totally repugnant to every principle of Christianity and justice.\n\n\n\n\nCHAPTER XIII.\n\nON MODERATION IN MAKING CAPTURES IN WAR.\n\n Effects belonging to the subjects of an enemy, and taken detained\n as a pledge or debt--Not to be taken by way of punishment for\n another's offence--The debt or obligation, arising from a state of\n war, illustrated by examples--Forbearance in the exercise of such a\n right from principles of humanity.\n\n\nI. The capture of an enemy's goods, even in JUST WAR, is not, in ALL\nCASES, perfectly justifiable, nor is the captor always exempt from the\nties of restitution. For strictly speaking, according to the rules of\npure justice, it is not lawful to seize or detain goods except to the\nexact amount of the debt which the enemy has incurred. Indeed goods may\nbe detained beyond that, as a necessary pledge of security, but still\nupon the condition of being restored, as soon as the danger has ceased:\nRESTORED EITHER LITERALLY, OR BY SOME PROPER COMPENSATION BEING MADE.\n\nHere then is a right of capture, which confers no right of property or\nacquisition. But when any thing may become due to us, either from a\npenalty or the non-performance of an engagement, in both cases a right\nto an enemy's goods, if they can be taken, is acquired. By the latter\nkind of debt not only the effects of the debtor himself, but those,\nbelonging to his subjects, may according to the principles introduced\nby the law of nations be taken as a security.\n\nThis right of the law of nations is very different from that\nestablished in impunity alone, or depending upon the external force\nof judicial authority. For as by our private consent the person with\nwhom we contract acquires not only an external and legal right over\nour property, but an internal right, proceeding from conscience, so he\nacquires the same right by a kind of common consent, which virtually\ncomprehends the consent of individuals, in which sense the law is\ncalled the common compact or covenant of the state.\n\nAnd in transactions of this kind it is most likely that nations\napproving of such a rule, introduced a law, which might not only\nprevent greater evils, but also enable every one to attain his own\nright.\n\nII. But in the other kind of debt arising from penalty, or punishment,\nit does not appear, that nations consented to the establishment of\nany such right over the effects of subjects. For binding the property\nof one man for the offence of another is a kind of odious act, and\ntherefore ought not to be extended farther than the law appears to have\nactually decreed. Nor is the advantage derived from the latter, by any\nmeans equal to that attending the former kind of debt. For what is due\nto us from damage, or the non-performance of a treaty may be considered\nas a part of our effects, but it is not so with the obligation to\npunishment, which is purely of a personal nature, therefore no loss is\nincurred by relinquishing this right.\n\nNor is the argument in the least weakened by what was said before[68]\nrespecting the Athenian law. For there it was maintained that subjects\nwere not bound to suffer, because the state was amenable to punishment,\nbut in order to compel the state to do what she ought to do, in\nbringing the guilty to punishment: a debt arising from duty, and\nrelating to obligations of the former kind, rather than to those of\nthe latter. For there is a difference between being obliged to punish\nanother and being one's self amenable to punishment: tho' the latter\nmay frequently arise from the neglect of doing the former, but still\nthere is the same distinction between them, as between cause and effect.\n\nThe goods of subjects can only be taken by way of reprisal in return\nfor other goods taken by the enemy; but they can never be taken as\na punishment for the neglect of bringing offenders to justice. The\ndelinquents themselves, in the number of whom may be reckoned those,\nwho have neglected to discharge their duty in this respect, must answer\nfor such offences.\n\nIII. The goods of subjects may be taken, and a property acquired\ntherein, not only in order to obtain payment of the ORIGINAL debt,\nwhich occasioned the war, but of OTHER debts also, to which the same\nwar may have given birth. And in this sense the words of those are\nto be taken, who maintain, that captures in war are not a perfect\ncompensation for the principal debt, but only used as a means to\nenforce satisfaction for the damages sustained from aggressions.\nThus the Romans, in their dispute with Antiochus, as related by Livy,\nthought it but right for that king to make reparation for all the\nexpenses incurred in the war, which he had occasioned. Indeed any\nterms, that may be justly imposed upon the conquered may justly be\nenforced by war.\n\nIV. The right of seizing the goods of the innocent subject of an\nenemy seems to have been introduced, in order to compel the original\naggressor, or debtor to grant redress for the injury he had done: and\nalthough his falling on the innocent may be no way repugnant to what is\nlegally right, it is in some measure a departure from the principles\nof humanity. On the other hand, history, especially the Roman history,\nabounds in examples of humanity, where lands have been restored to a\nconquered enemy, upon condition of their belonging to the STATE, and\nbecoming subject to the payment of a tribute.\n\n\n\n\nCHAPTER XV.[69]\n\nON MODERATION IN ACQUIRING DOMINION.\n\n How far internal justice permits us to acquire dominion--Moderation,\n in the use of this right over the conquered,\n laudable--Incorporating them with the conquerors--Allowing them\n to retain their dominions--Placing garrisons therein--Imposing\n tributes or other burdens--Utility of such moderation--Change in\n the form of a conquered government--The conquered permitted to\n retain some part of their former liberties--Especially in matters\n of religion--Clemency to be shewn.\n\n\nI. That equity and moderation towards individuals, which are so highly\nextolled, are still more deserving of admiration, when exercised\ntowards nations and kingdoms; where injustice would be attended with\nmore signal calamities, and moderation with more beneficial effects.\n\nIn just war the right of dominion over a people, and the sovereign\npower, which that people possess, may be acquired as well as any\nother right. But the claims to such a right ought by no means to be\nprosecuted beyond indemnity for aggression, and security against future\nevils.\n\nBut this motive, so necessary to be observed, especially in all\ntreaties of peace, as well as in the use of victory, is often\nconfounded with others. In other points a sovereign prince or state may\nrelinquish a claim from a principle of moderation, but where the future\nsecurity of their subjects is concerned, it is an act of cruelty rather\nthan of moderation to relax too far in favour of a conquered enemy.\n\nII. Aristotle has, more than once, said, that war is undertaken for\nthe sake of peace, and toil endured in order to obtain rest. And in\nthe same manner, Cicero has observed, that men go to war, that they\nmay live in peace without molestation and injury. War too, as we are\ninstructed by the teachers of true religion, may be made, to remove\nevery thing that interrupts, and stands in the way of peace.\n\nIn the primitive ages, as we find from history, wars in general were\nmade to preserve territories rather than to extend them. And any\ndeviation from this rule was thought unlawful: thus the prophet Amos\nreproves the Ammonites for their love of making conquests.\n\nIII. The prudent moderation of the ancient Romans approaches nearly to\nthis model of primitive innocence. For although they made conquests,\nthey mitigated the fate of the conquered by incorporating them with\nthemselves.\n\nIV. Another mark of moderation in the use of victory is leaving to\nconquered kings, or nations the dominions, which they LAWFULLY held\nbefore.\n\nPolybius highly extols the merit and wisdom of Antigonus, who, having\nSparta in his power, allowed the inhabitants to retain their national\npolity and freedom.\n\nV. Sometimes indeed a conqueror, though allowing a subjugated people\nto retain their dominion and sovereignty, must provide for his own\nsecurity, by placing garrisons in their country.\n\nVI. Contributions too are frequently imposed and levied, not so much\nby way of indemnity for expences incurred, as for a future security\nbetween the conqueror, and the conquered country. Upon the same\nprinciple, as was before[70] observed, in explaining the nature of\nunequal treaties, conditions may be imposed also requiring a conquered\npower to deliver up a certain number of her ships and forts, and to\nreduce her troops to a limited number.\n\nVII. But leaving to conquered powers a part or the whole of their\ndominions is not only sometimes an act of justice and humanity, but\nan act of sound policy also. Among other of Numa's institutions, his\nmanner of celebrating the rites of TERMINUS, the DEITY OF BOUNDARIES,\nis much commended; for he prohibited the use of blood in those\nceremonies, as an intimation that nothing was more conducive to the\npeace and harmony of the world, than for every nation to confine\nherself within her proper bounds.\n\nIn conformity to which maxim Florus observes, that it is more easy to\nmake conquests than to keep them. To which rule Plato, in his third\nbook of Laws, adapts the proverbial expression of Hesiod, that HALF IS\nBETTER THAN THE WHOLE.\n\nVIII. The Lacedaemonians and the Athenians anciently claimed no farther\ndominion over conquered cities and states, than purely wishing them to\nadopt forms of government like their own, the Lacedaemonians living\nunder an aristocratic, and the Athenians under a democratic system. But\nwhether such changes were conducive to a conqueror's security, it is\nnot to our present purpose to examine.\n\nIX. If it is not perfectly safe to forbear exercising ANY dominion over\na conquered enemy, the matter may be so regulated as to leave him some\nportion of his former sovereignty and power. Thus among the Jews the\nsceptre remained with the Sanhedrim, even after Archelaus was deprived\nof his kingdom; and Alexander in many cases allowed Darius to remain a\nsovereign over others, while he required of him submission to himself.\n\nX. Even though a conquered power was deprived of all sovereignty,\nshe might be allowed to retain some of her laws, privileges, and\nmagistracies of inferior importance. Thus, Pliny, in his letters,\ninforms us, that in the proconsular province of Bithynia, the city of\nApamaea was allowed to regulate the form of her government at her own\npleasure, and, in other places, the Bithynians were permitted to retain\ntheir own magistrates, and their own senate.\n\nXI. This indulgence ought to be shewn to every people, especially in\ntheir attachment to the religion of their forefathers, of which they\nshould never be deprived but with their own consent and conviction. An\nindulgence, which Agrippa in his address to Caius, as cited by Philo\nin the account of his embassy, approves of, as highly grateful to the\nconquered people, and by no means prejudicial to the conqueror. At the\nsame time a conqueror will take care that erroneous opinions do not\nprevail to the prejudice and overthrow of true religion, as was done by\nConstantine upon his crushing the party of Licinius, and afterwards by\nthe Franks and other kings.\n\n\n\n\nCHAPTER XVI.\n\nON MODERATION WITH RESPECT TO THINGS EXCLUDED FROM THE RIGHT OF\nPOSTLIMINIUM BY THE LAW OF NATIONS.\n\n Internal justice requires the restitution of things taken from others\n by an enemy in unjust war--Deductions made--Subjects and countries,\n if unjustly seized by an enemy, to be restored to their original\n sovereign--The time, when the obligation to restore them expires,\n defined--What is to be done in doubtful cases.\n\n\nI. How far things taken in just war become the property of the captors\nhas been explained before. From which a deduction must be made of\nthings recoverable by the right postliminium, those being no captures\nat all.\n\nBut things, taken in unjust war, are to be restored, not only by those,\nwho have taken them, but by others also into whose hands they may have\nby any means fallen. For, as the Roman lawyers say, no one can convey\nto another a greater right than he himself possesses. The original\ncaptor had no just title to any property therein, neither can the\nperson, deriving his title through him, establish any better claim.--A\nSECOND or THIRD possessor may have acquired a property therein, which\nthe law presumes he has a right to, till the contrary be shewn, and\nfor which an action may be maintained. Yet it is a right of which he\ncannot honestly avail himself against the real owner, from whom it was\nunjustly taken.\n\nII. and III. Therefore such things are to be restored to those, from\nwhom they were taken, which we find in ancient times was often done.\nLivy in relating the defeat of the Volscians and Aequi by a Roman\nConsul, says that the booty was exposed in a public place, for the\nspace of three days, that every one, coming to recognise what belonged\nto him, might take it away.[71]\n\nBut if any one has become possessed of such a thing by purchase, it\nmay be asked, if he can charge the person from whom it was originally\ntaken, with the price which he has paid for it? According to the\nprinciples before[72] laid down, he certainly may charge as much to the\nperson losing it, as the repossession of a thing, which he despaired of\never recovering, is worth.\n\nThe history of Abraham seems applicable to this subject, when he\nreturned from his victory over the five kings. Being a man of noble and\nexalted piety, he would appropriate nothing to himself, but considering\nthe things retaken, as his own right, in recompence for his labour and\ndanger, he devoted a tenth part to God, after deducting the necessary\nexpences, and divided a certain portion among his companions.\n\nIV. As THINGS are to be restored to their original owners, so SUBJECTS\nare to be restored to their former lawful sovereigns.\n\nV. The period also, when the obligation to restitution expires, is\noften a subject of inquiry. But this is a question, when arising\nbetween subjects of the same kingdom, which must be settled by the\nmunicipal laws of that country: but when the contending parties are\nthe subjects of foreign powers, the matter can only be decided upon a\nconjecture of the time sufficient to constitute a presumed dereliction\nof property.\n\nVI. But where the right of war is doubtful, it will be safest to follow\nthe conduct of Aratus of Sicyon, in advising the new possessors in some\nmeasure to prefer taking a sum money in lieu of the possession, and\nrecommending the same maxim to the original owners, to prefer a sum of\nmoney, if they could obtain it, equivalent to the recovery of their\nright.\n\n\n\n\nCHAPTER XVII.\n\nRESPECTING THOSE WHO ARE NEUTRAL IN WAR.\n\n Nothing to be taken belonging to neutrals, but under circumstances of\n extreme necessity, and with an intention to pay the full price of\n it--Conduct of neutral powers towards belligerents.\n\n\nI. It may appear superfluous to speak of neutral powers, against whom\nno rights of war can exist. But as war, under the plea of necessity,\noccasions many aggressions to be committed against them, especially\nwhen bordering upon the seat of its operations, it may be necessary\nbriefly to repeat a former assertion, that nothing short of extreme\nexigency can give one power a right over what belongs to another no way\ninvolved in the war. The case too is equally clear that no emergency\ncan justify any one in taking and applying to his own use what the\nowner stands in equal need of himself. But even where the emergency can\nbe plainly proved, nothing can justify us in taking or applying the\nproperty of another to our use, beyond the IMMEDIATE DEMANDS OF THAT\nemergency. Where the CUSTODY of a thing, by securing it, is sufficient\nfor the purpose, the USE and CONSUMPTION of it is absolutely unlawful.\nIf the USE of it is necessary, it must not be ABUSED: and if the entire\nABUSE of it be requisite, the full value should be paid.\n\nII. Again, according to what was said in a preceding part of this book,\nit is the duty of those, who profess neutrality in a war to do nothing\ntowards increasing the strength of a party maintaining an unjust\ncause, nor to impede the measures of a power engaged in a just and\nrighteous cause. But in doubtful cases, they ought to shew themselves\nimpartial to both sides, and to give no succour to besieged places, but\nshould allow the troops of each to march through the country, and to\npurchase forage, and other supplies. The Corcyraeans, in Thucydides,\nsay that if the Athenians intend to remain neuter, they ought either\nto prohibit the Corinthians from enlisting men in the territory of\nAttica, or to give THEM the same privilege. The Romans objected to the\nconduct of Philip king of Macedon, charging him with a double violation\nof treaties, both by injuring the allies of the Roman people, and\nassisting the enemy with supplies of men and money.\n\n\n\n\nCHAPTER XIX.[73]\n\nON GOOD FAITH BETWEEN ENEMIES.\n\n Good faith due to enemies of every description--Due even to pirates,\n and others of the same kind, in all treaties with them--A promise\n given to them, binding, when not extorted by fear--Oaths to be\n inviolably observed--The law of nations does not allow fear to\n be alleged as an exception to the above rules--Good faith to be\n observed even to a treacherous enemy--This obligation ceases, where\n one of the parties violates his engagements--Or refuses a just\n compensation--Even where the obligation arose from a different\n contract--From loss occasioned--Or from a penalty--Application of\n these principles to war.\n\n\nI. It was before said that the number and extent of actions, lawful\nin war, may be considered either upon their own intrinsic merits, or\nas rising out of some antecedent engagement. The former point having\nbefore been fully explained, this is the proper place for discussing\nthe latter, which comprehends the good faith of enemies towards each\nother.\n\nCicero, in his fifth book on the bounds of good and evil, has well\nobserved that every one must approve and commend a disposition to\nadhere faithfully to our engagements not only from disinterested\nmotives, but in some cases even in opposition to our own interest. And\nAugustine says that it is right to maintain the pledge of faith given\nto an enemy, for under the character of enemies men do not lose their\nright to the fulfilment of a promise, a right which every one possessed\nof reason is capable of. It is the power of reason and speech from\nwhich the obligation of promises springs. Nor is it to be supposed\nthat, because it is lawful to deceive an enemy on some occasions, the\nsame rule will authorise a violation of faith in engagements. For the\nobligation to speak the truth arises from causes antecedent in their\nexistence to any state of warfare, and they are causes which a state\nof warfare may render it necessary to change or abridge. But a promise\nconfers a new right of itself. A distinction which did not escape the\nnotice of Aristotle, who, in speaking of truth, says that he does not\nconsider truth and sincerity in engagements, with relation to justice\nor injustice, but as belonging to another class of virtues.\n\nII. As to engagements with pirates, we may observe, that Pompey in a\ngreat measure concluded the disputes with them by treaty, sparing their\nlives, and allowing them places to reside in, on condition of their\nabandoning their former way of life. The law of nations indeed has not\nestablished the same mode of communication with them, as among regular\nenemies in just and lawful war: but still the very circumstance of\ntheir being MEN, entitles them to those privileges which are sanctioned\nby the law of nature, among which the observance of engagements is one.\n\nIII. Let us consider if a more specious argument than Cicero's may not\nbe devised on this subject.--In the first place it may be stated that\natrocious malefactors, forming no part of a state, may be punished by\nany one whatever, according to the law of nature. For those, who may be\npunished with death, may upon the same principle be deprived of their\nproperty and all their rights. And among rights may be enumerated the\nright of requiring a fulfilment of promises and engagements: the guilty\nmay therefore be deprived of this right by way of penalty. In reply to\nwhich it may be said, this will certainly be the case, if the person\nis treated with, but not as a malefactor: for the very act of treating\nwith him shews that he is not considered any longer in that light, but\nas one entitled to all the rights of treaty, the criminal part of his\ncharacter not being taken into the account, all penalties on that score\nbeing, as it were remitted. For every act of treaty must be interpreted\nso as to avoid absurdity.\n\nIV. An objection to treating with pirates upon principles of good faith\nis deduced from their calling, which is to extort terms by fear. Now\nwhere a promise has been extorted, the promisor is released from his\nengagement, as having unjustly sustained a damage, by an act repugnant\nto the nature of human liberty, and to the nature of human action,\nwhich ought to be free.\n\nThis, it must be admitted, may sometimes happen, but does not apply to\nall promises made to pirates. For to make the person, to whom a promise\nhas been given, liable to release the engagement, the promiser himself\nmust have been forced to give the promise under impressions of unjust\nfear. So that if any one has promised a ransom in order to redeem a\nfriend from captivity, he will be bound by his promise. For in this\ncase there was no impression of fear, as he came voluntarily to make\nthe contract.\n\nV. A promise too made through the compulsion of fear will be binding,\nwhere it has been ratified by the solemn sanction of an oath: for in\nthat case it is not only one man making an engagement to a fellow\ncreature, but binding himself to God by the most solemn appeal:\nagainst which neither fear nor any other motive can form an exception.\nYet the heir of a promiser is not bound by any such obligation:\nbecause inheritances pass according to the rules of human intercourse\nestablished at the original institution of property: but the divine\nright to the fulfilment of oaths, as such, is not included in these.\nFrom the above arguments a conclusion may be deduced, that if any one\nviolates a pledge given to such an enemy either upon oath or without\noath, he will not on that account be liable to punishment among other\nnations, because from the general horror which piracy excites, nations\nhave thought proper to pass over without notice the violation of rules\nof faith towards them.\n\nXI.[74] Solemn war, signifying such as is proclaimed and begun on\nboth sides by authority of the sovereign or state, among its many\nother legal rights, includes also that of giving validity to every\npromise, which may be conducive to its termination, so that if either\nparty, through an ill-grounded fear of further calamities, has, even\nagainst his will, made promises unfavourable, or acceded to terms\ndisadvantageous to himself, such an engagement will be binding. For\nthe law of nations allows belligerent powers to alarm each other, if\npossible, into submission upon the most unequal terms, in the same\nmanner, as it gives a sanction to many things not strictly equitable\naccording to natural and municipal law. For if such a practice had not\nbeen established, wars, which are so frequent, could never have been\nbrought to a conclusion, an object so much for the interest of mankind.\n\nThese are the rights of war which Cicero says ought to be inviolably\npreserved with an enemy: for an enemy not only retains his natural\nrights in war, but certain other rights originating in the consent\nof nations. Yet it does not follow from hence that any one, who has\nextorted such a promise in unjust war, can, consistently with piety\nand the duties of a good man, retain what he has so received, nor can\nhe compel another to stand to such engagements, whether upon oath, or\nnot. For the natural and internal injustice of such a promise always\nremains the same, nor can the injustice be removed or altered, till it\nhas received a new and free concurrence from the party, by whom it was\ngiven.\n\nXII. The only impressions of fear, that can be lawfully inspired in\nregular war, are those which are approved of by the law of nations.\nThus no one can avail himself of a promise, extorted from an ambassador\nunder impressions of fear excited by the seizing of his person.\n\nXIII. and XIV. There are two cases, in which a person may not perform\nhis engagement or promise, without being guilty of treachery: and those\nare, where the conditions have not been fulfilled, or some compensation\nhas been made. For in one and the same treaty all the clauses seem\nconnected with each other, as a kind of condition expressing the\nintention of one party to fulfil his engagement, if the other shall\ndo the same. Therefore Tullus, in replying to the Albans invokes\ndestruction upon the head of that people who first rejected the just\nclaims of ambassadors demanding restitution, wishing that all the\ncalamities of war might fall upon them. For, says Ulpian, he shall no\nlonger be held as a confederate, who has renounced a treaty, owing to\nsome condition, on which it was made, not being fulfilled. For which\nreason, wherever it is intended otherwise, it is usually stated in\nexpress terms, that the violation of any particular clause shall not\nannul the whole treaty.\n\nXV. The origin of compensation was explained in the second book of this\ntreatise,[75] where it was said to be the power and right of receiving\nan equivalent, for some thing belonging to us, which is in the hands\nof another, or any thing due to us, which we cannot otherwise obtain:\nand much more then have we a right on the same account to detain any\nthing which is ALREADY IN OUR POWER, whether it be of a corporeal or an\nincorporeal kind. So that we are not obliged to perform a promise, if\nit be no more than equivalent to a thing of ours which the other party\ndetains. Seneca, in his sixth book ON BENEFITS, says that a creditor\noften becomes under an obligation to his debtor, if he takes more than\nan equivalent for his debt. For though it may be granted that he has\nlent money, yet if by such a loan he has obtained the possession of\nlands, which he never bought, he changes situations with his debtor,\nand becomes a debtor in his turn.\n\nXVI. It will be the same, if one of the contracting parties owes\nas much, or more, from some other engagement: and the debt cannot\notherwise be obtained, than by taking advantage of the present\ncontract, though it has no connection with the former debt. But in a\nLEGAL point of view, all actions are perfectly distinct, nor can their\nforms, their grounds, or their substance be confounded; but certain\ncases are confined to certain laws, to which it is necessary invariably\nto adhere: one law cannot be mixed with another, but every one in the\nprosecution of a right must tread upon invariable and beaten ground.\nBut the law of nations does not regard such distinctions, it allows us\nto transgress them where there is no other means of obtaining our right.\n\nXVII. and XVIII. The same may be said too, where the party exacting a\npromise, has not contracted any debt by engagement, but has done an\ninjury to the promiser. And whatever is due by way of punishment may be\nbalanced against a promise.\n\nXIX. If while a law-suit is depending, the parties enter into an\nagreement of any kind, either to pay the costs, or to make good other\ndamages, they cannot avail themselves both of this agreement, and claim\na further compensation for the original matter in dispute. In the same\nmanner, if during the continuance of a war the belligerents negotiate\nfor a conclusion of the original dispute, they are supposed thereby\nto settle every cause of hostility, nor can they any further avail\nthemselves of the rights of war, so as to enjoy both the advantages of\nthem, and of negotiation, at the same time. For if this were the case,\nno treaties could ever be enforced with certainty.\n\nIt may be asked, of what nature are the things for which a promise of\ncompensation should be given? In answer to which it may be observed,\nthat such a promise or engagement may be made in lieu of some other\nobligation incurred during the course of a war: as for instance, where\nthe breach of a truce has been committed, the rights of an ambassador\nviolated, or any other action done, repugnant to the principles\nestablished by the law of nations among belligerent powers.\n\nStill it must be observed that the parties, in making compensation,\nshould abstain with the utmost caution from infringing upon the rights\nof a third person, especially where this can be done without abandoning\nthe principles of the law of nations, which makes the effects of\nsubjects answerable for the debts of the state. Besides it is the mark\nof a dignified mind to adhere to engagements even after receiving an\ninjury. On which account the Indian sage Jarchas commended that king,\nwho on sustaining an injury from a neighbouring and confederate power,\nsaid he should not think himself released from his sworn engagements,\nwhich were solemn acts, that no injustice on the part of another could\nrepeal.\n\nAlmost all questions relating to pledges of faith given by one\nbelligerent power to another, may be solved upon the principles before\nlaid down, in explaining the nature and force of promises in general;\nof oaths, treaties, and conventions, and also in explaining the rights\nof the obligations of kings, and the method of interpreting doubtful\npoints. But in order to remove every doubt and difficulty, perhaps a\nbrief discussion of the most usual and practical topics of negotiation\nwill not be deemed tedious.\n\n\n\n\nCHAPTER XX.\n\nON THE PUBLIC FAITH, BY WHICH WAR IS CONCLUDED; COMPRISING TREATIES OF\nPEACE, AND THE NATURE OF ARBITRATION, SURRENDER HOSTAGES, PLEDGES.\n\n In monarchies the power of making peace a royal prerogative--In\n aristocracies and democracies, this right belongs to a greater\n number of persons--In what manner the public dominions or\n any part of them may be alienated--How far a peace concluded\n by the king binds the state, or his successors--Property of\n individuals ceded for the benefit of the state at the time of\n making peace--Indemnity to those individuals--Losses sustained\n in war--No distinction between things acquired according to the\n law of nations and the civil law--Transactions of the sovereign\n with foreign nations deemed valid from motives of public\n utility--General rule of interpreting the terms of peace--In\n doubtful cases the former state of things supposed to be continued\n by a treaty of peace--Things restored to the state they were\n in before the war--Independent states, voluntarily joining\n one of the belligerent powers cannot claim indemnity of the\n other--General amnesty--Private debts subsisting before the war\n not included therein--Restoration of captures--Rules respecting\n such restorations--Dubious points to be interpreted to the\n prejudice of the party dictating the terms--Distinction between\n new causes of war, and the breach of a peace--Rupture by any act\n contrary to the terms of peace in general--Infraction of a treaty\n by allies or subjects--Violation of a particular treaty--Heads\n of treaties--Penalties annexed--Unavoidable impediments to the\n fulfilment of a treaty--Peace continued at the option of the\n injured party--Relations of amity--How far receiving subjects\n and exiles may be considered as a breach thereof--Victory--War\n concluded by arbitration--Arbitrators bound by rules of strict\n justice--Absolute, and conditional surrender--Hostages can be\n detained for no other than the express cause for which they were\n given--Released by the death of the party for whom they were\n given--Obligation of pledges--Right of redeeming them lost.\n\n\nI. Good faith, either expressed or implied, must be the foundation\nof every treaty between hostile powers. And again the faith that is\nexpressed is either of a public or a private nature, and the pledges\ngiven either by the sovereign, or inferior authorities in states\nconstitute the public faith. It is, by such pledges given on the part\nof the sovereign power alone, that peace can be concluded, or the\nrights of war enforced. In the termination of every war, either the\nprincipal, or accessory causes are to be considered. Treaties are in\ngeneral regarded as the principal instrument, by which wars are ended,\nand the mediation, or decision of a third person or power is deemed a\nsecondary or accessory means.\n\nII. The person, who has authority to begin a war, is the only one to\nwhom the right of making peace can properly belong, according to the\ngeneral maxim, that every one is the best judge in the management of\nhis own affairs. From hence it follows, that public war can be made by\nthe sovereign power alone on each side: a right which in every kingly\ngovernment is very justly vested in the crown.\n\nIII. and IV. In popular or aristocratic forms of government, the\nright of making war, or concluding peace, is generally lodged in some\npublic council or body, where a majority of voices may form treaties,\nconventions, or resolutions, which will be binding upon the dissentient\npart of such council. And all who are bound by a peace, whether\napproving it or not are entitled to its benefits.\n\nV. In examining those objects, which form the most material part of\ntreaties, we may observe, that kingdoms are not so much a patrimony,\nwhich may be alienated at pleasure, as a trust, placed in the hands of\nthe sovereign for the benefit of his people. Indeed kings themselves\nare aware of this, even before the crown descends upon their heads, and\nthey receive it upon condition of adhering to such sacred obligations.\n\nNor can such alienations ever be made, so as to be attended with\nconsequences like those of private contracts, or to render the goods\nand effects of subjects answerable for such engagements. For if that\nwere the case, the fundamental laws of the kingdom, prohibiting such\nalienations, would be of no effect.\n\nTo render the alienation of the whole public dominion valid, the\nconsent of the constituted authorities of the state is requisite.\nAnd indeed to confirm the transfer of any particular portion, the\nconsent of the whole body as well as of that particular member will\nbe necessary: for otherwise such alienation would be like the violent\nseparation of a limb from the natural body.\n\nA whole people may in a case of extreme necessity transfer themselves\nto the dominion of another, a right which undoubtedly was reserved at\nthe original formation of society.\n\nNeither is there any thing to prevent a king from alienating his\npatrimonial and private possessions. Yet there may be parts of the\nroyal dominion, which the sovereign cannot alienate from the crown,\nespecially, if he has received it upon condition of making no personal\nappropriation of any thing belonging thereto.\n\nThere are two ways in which the possessions of the crown may become\nthe patrimony of the king, either as separable or inseparable parts of\nthe kingdom. In the latter case they can only be transferred with the\nkingdom itself, but in the former, they may be alienated by themselves.\nAnd where the crown is not patrimonial and hereditary, the restrictions\nupon the sovereign in this respect are much greater.\n\nVI. A nation and a king's successors are bound by his engagements,\nin proportion to the power, which he derives from the constitution,\nof making such engagements. For though this power may not be\nabsolutely unlimited, yet it ought not to be clogged with unnecessary\nrestrictions. It should be such as may enable him to exercise his\ndiscretion and judgment on proper occasions for the benefit of his\npeople.\n\nThe case will be different, where a king's power over his subjects is\nlike that of a master over his household, more than of a sovereign\nover his state, as where he has entirely subjugated a people, or where\nhis controul over their property is absolute. Thus Pharaoh purchased\nall the land in Egypt, and others have admitted strangers into their\nterritories allowing them to hold lands upon such conditions. For here,\nthere is another right in addition to that of a sovereign, and it is\na right, which sovereignty alone without conquest could never have\nconferred.\n\nVII. The right of sovereigns to dispose of the effects of individuals,\nin order to make peace, is often a disputed point, nor can they\nexercise this right over the property of subjects in any other manner\nthan as sovereigns.[76]\n\nThe property of subjects is so far under the eminent controul of the\nstate, that the state or the sovereign who represents it, can use\nthat property, or destroy it, or alienate it, NOT ONLY IN CASES OF\nEXTREME NECESSITY, which sometimes allow individuals the liberty of\ninfringing upon the property of others, but on all OCCASIONS, where\nthe public good is concerned, to which the original framers of society\nintended that private interests should give way. But when that is the\ncase, it is to be observed, the state is bound to repair the losses of\nindividuals, at the public expence, in aid of which the sufferers have\ncontributed their due proportion. Nor will the state, though unable to\nrepair the losses for the present, be finally released from the debt,\nbut whenever she possesses the means of repairing the damages, the\ndormant claim and obligation will be revived.\n\nVIII. There must be some hesitation in admitting the opinion of\nFerdinand Vasquez, who maintains that the state is not bound to repair\nthe losses, which are occasioned to individuals in the course of war,\nas those are accidents permitted by the rights of war.\n\nFor those rights regard the relation of foreign states and enemies to\neach other, but bear no reference to the disputes of subjects among\nthemselves, who, being united in the same cause, ought to share the\ncommon losses, which happen to them in supporting the privileges of\ntheir society. It is a rule likewise established by the civil law, that\nno action can be brought against the state for the losses sustained in\nwar, as every one is thereby induced to defend his own property with\nmore earnestness and spirit.[77]\n\nIX. Some make a distinction between the property which subjects are\nentitled to from the law of nations and that which they possess by the\nauthority of the civil law, allowing the king a more extensive controul\nover the latter, even to the power of taking it without cause or\ncompensation, which is not the case with property of the former kind.\nBut this is an improper distinction. For whatever may be the origin of\nproperty, it is always attended with peculiar effects according to the\nlaw of nature: so that it cannot be taken away for any other reasons\nthan those inherent in the nature of property itself, or derived from\nsome act of the owners.\n\nX. The prohibition respecting the property of individuals being given\nup, except for some public advantage, is a matter resting entirely\nbetween a sovereign and his subjects, and a compensation for losses is\nan affair between the state and individuals. But in all transactions\nbetween a king and foreigners, the act of the king is sufficient to\ngive them NATIONAL validity, not only out of respect to his personal\ndignity, but according to the law of nations, which renders the effects\nof subjects responsible for the acts of the sovereign.\n\nXI. In interpreting treaties of peace, favourable circumstances\nare always to be taken in their utmost latitude, and unfavourable\ncircumstances to be limited as strictly as possible.[78]\n\nRegarding purely the law of nature, the most favourable construction\nis that, whereby every one is restored to his own property and\npossessions. Therefore where the articles of a treaty are ambiguous,\nthe construction should go so far, as to grant the party, who has\nevidently justice on his side, the object for which he went to war, and\nlikewise indemnity for the losses which he has sustained.\n\nBut it is not allowable that either party should gain more than an\nindemnity, or demand any thing by way of punishment, which is of an\nodious nature.\n\nAs in making peace, it scarcely ever happens that either party will\nacknowledge the injustice of his cause, or of his claims, such a\nconstruction must be given, as will equalize the pretensions of each\nside, which may be accomplished, either by restoring the disputed\npossessions to their former situation, or by leaving them in the state,\nto which the war has reduced them.\n\nXII. Of these two methods, in a doubtful case, the latter is preferred,\nas being the more easily adjusted, and occasioning no further change.\nFrom hence the right of postliminium belongs to such prisoners, as are\nexpressly included in the treaty. Neither are deserters to be given up,\nunless it be so agreed. For by the laws of war any power is allowed to\nreceive deserters, and even to enlist them in his own army.\n\nBy such agreement other things remain in the hands of the possessors,\nby which is not meant a civil, but a natural possession: for in war\nBARE POSSESSION is sufficient, nor is any other kind looked for.\nAnd lands are said to be so possessed, when inclosed or defended by\nfortifications, for a temporary occupation by an encampment is not\nregarded in this case. Hence Demosthenes in his speech for Ctesiphon,\nsays that Philip was anxious to make himself master of all the places\nhe could seize, as he knew that upon the conclusion of a peace, he\nshould retain them.\n\nIncorporeal rights cannot be held but by the occupation of the things\nwith which they are connected; as for instance, the services of lands,\nor through means of the persons, to whom they belong: but the holders\nof such rights lose them, when an enemy has become master of the\ncountry.\n\nXIII. In that other mode of treaty, whereby possession, that has been\ndisturbed in the course of a war, is restored, it is proper to observe\nthat the last possession, immediately before the war began, is that,\nwhich is always meant, so that the individuals then unjustly ejected,\nmay have recourse to law, either to obtain possession by a provisional\ndecree, or to make good their claim.\n\nXIV. If an independent people VOLUNTARILY and SPONTANEOUSLY place\nthemselves under the controul and protection of one of the belligerent\npowers, such a people cannot be included among those entitled to\nrestitution, which only belongs to those who have suffered losses by\nviolence, through fear, or any lawful stratagem of war. Thus when\npeace was made among the Grecian states, the Thebans retained Plataea,\nobserving that they neither owed their possession of it to violence,\nnor treachery, but to the free surrender of those, to whom it belonged.\n\nXV. Unless there is an express stipulation to the contrary, it is\nunderstood that, in all treaties of peace, there is an implied assent\nthat no actions are to be brought for losses occasioned by the\naccidental calamities of war, either to states or individuals. For\nthose are natural consequences of a state of hostilities: and it is\nsupposed that in doubtful cases, no belligerent would consent to be\nconvicted of injustice.\n\nXVI. The debts, owing to individuals, at the beginning of a war, are\nnot to be thought thereby discharged. For they are not things acquired\nby the laws of war: for war only prevents the claim to them from being\nprosecuted, but by no means releases the obligation. So that when the\nimpediment of war is removed, such debts retain their original force.\nFor though it ought not to be presumed that any one should easily\nbe deprived of a right subsisting before the war, yet this is to be\nunderstood of the rights arising out of the foundation of property,\nwhereby a community and equality of goods was abolished. For states and\ngovernments, says Cicero, were originally and principally designed to\npreserve to every one the possession of his own property.\n\nXVII. The right to claim lands or goods of any kind, by way of\nPUNISHMENT, is not of equal force with the above rules. For in\ntransactions and treaties of that kind between kings and sovereign\nstates, all claims of that kind seem and indeed ought to be\nrelinquished, otherwise peace would be no peace, if the old and\noriginal causes of the war were allowed to remain and be revived. And\nthe most latent and remote causes are supposed to be included in the\nmost GENERAL TERMS, in treaties of peace, whereby they are sunk in\noblivion.\n\nXVIII. The rights of individuals to penalties are not supposed to be\nabandoned, resting entirely upon different grounds: because they may\nbe decided by legal tribunals without appealing to the sword. Yet\nas our rights of this sort are not of the same kind with those of\nabsolute property, and as penalties have always something odious in\ntheir nature, any faint verbal conjecture will be thought a sufficient\npresumption of their being remitted.\n\nXIX. The objection made against taking away any rights, that existed\nbefore the war, applies chiefly to the rights of INDIVIDUALS. For\nwhere the words of a treaty supply any probable conjecture, it is\nmost natural to suppose that KINGS and NATIONS have more readily\nrelinquished certain rights, especially in matters, where those rights\nare not clearly and fully ascertained. So that, giving the most\nfavourable construction to their conduct, they are supposed to have\nbeen animated with the noble desire of rooting up and destroying all\nthe seeds of war.\n\nXX. All captures, made after a treaty is finished, must evidently be\nrestored. For the treaty puts an end to all the rights of war.\n\nXXI. But in treaties relating to the restoration of things taken\nin war, a more extensive interpretation must be given, where the\nadvantages are mutual than where they incline only to one side.[79]\n\nIn the next place all the parts of a treaty relating to persons are to\nbe interpreted more favourably than those relating to things: and among\nthose relating to things, priority is given to lands before moveable\neffects, and also among these, such as are in the hands of the state\nare held in more consideration than the possessions of individuals. And\nagain, among things in the possession of individuals, those are more\nfavoured which are held under a beneficial title, than those which are\nloaded with incumbrances, as things held by money payments, or by dower.\n\nXXII. The person, to whom any thing is ceded by a treaty of peace,\nis entitled to the produce and fruits of it, from the time of such\ncession, and not farther back: a point maintained by Augustus Caesar in\nopposition to Sextus Pompey, who, upon Peloponnesus being ceded to him,\nclaimed also the tributes and revenues, that were due for former years.\n\nXXIII. The names of countries are to be taken according to the usage of\nthe present time, not so much according to the popular acceptation, as\nto that of men of science, by whom those subjects are generally treated\nof.\n\nXXIV. These rules also are of frequent use, whenever there is a\nreference to an antecedent, or to an ancient treaty. For in that case\nthe qualities and conditions of the latter treaty are considered\nas a repetition of those expressed in the former.--And the person\ncontracting is to be considered as having really performed his part of\nthe engagement, which he certainly would have done, had he not been\nprevented by the party with whom he is engaged in dispute.\n\nXXV. What some allege in excuse for a short delay in the execution of a\ntreaty is not to be admitted as true, except some unforeseen necessity\nhas occasioned the impediment. For though some of the canon-laws may\nfavour such a plea, that is not surprising, considering they are framed\nsolely with the view of promoting charity among Christians. But in this\nquestion relating to the interpretation of treaties, it is not so much\nour business to lay down what is best and properest for every one to\ndo, nor even to state what religion and piety require, as to consider\nwhat every one may be compelled by legal authority to do.\n\nXXVI. In doubtful matters it is usual for an interpretation to be given\nmore prejudicial to the party who has dictated the terms, than to the\nother, because in general he is the more powerful: in the same manner,\nin explaining the terms of a bargain, a construction is generally given\nagainst the seller: as he may blame himself for not having spoken more\nclearly, and openly. Whereas the other, comprehending the terms in more\nmeanings than one, might fairly select that most favourable to himself.\n\nXXVII. It is a matter of frequent dispute what constitutes the breach\nof a peace. For it is not the same thing to break a peace, as to\nfurnish new grounds and causes of war. There is a great difference\nbetween these things, both as to the penalty incurred by the aggressor,\nand as to the aggrieved party being, in other respects, released from\nhis engagements.\n\nThere are three ways, in which a peace may be broken,--either by doing\nsomething contrary to the very essence of ALL peace,--or something in\nviolation of the EXPRESS terms of a PARTICULAR peace,--or something\ncontrary to the EFFECTS, which are intended to arise from every peace.\n\nXXVIII. A thing is done contrary to the very essence of all peace,\nwhen hostile aggressions are committed without any new grounds of war.\nBut where any specious pretext can be assigned for taking arms, it is\nbetter it should be supposed purely an act of injustice, than an act of\ninjustice accompanied with perfidy. It is hardly necessary to quote the\nwords of Thucydides, who says, \"it is not the party, who repels force\nby arms, but the power who first makes the attack, that violates a\npeace.\"\n\nHaving laid down these rules, it remains to be considered, who are the\nAGGRESSORS, and who are the AGGRIEVED PERSONS, in the breaking of a\npeace.\n\nXXIX. There are some, who think that a peace is broken, when even\nthose, who have been allies do any of these things. Nor indeed can it\nbe denied, that such an agreement MAY be made, for one ally to become\nliable to punishment for the actions of another, and for a peace to be\ndeemed ratified and permanent only upon conditions, partly arbitrary,\nand partly casual.\n\nBut it is hardly credible, unless there is the clearest evidence of it,\nthat peace is ever concluded upon such terms. For it is contrary to\nall rule, and repugnant to the common wishes of those, who make peace.\nTherefore those, who have committed hostile aggressions, without the\nassistance of others, will be deemed breakers of the peace, against\nwhom alone the injured party will have a right to take arms.\n\nXXX. If subjects have committed any act of hostility without authority\nand commission from the state, it will form a proper subject of\ninquiry, whether the state can be judged responsible for the acts of\nindividuals: to constitute which responsibility, it is evident that a\nknowledge of the fact, power to punish it, and having neglected to do\nso, are requisite.\n\nA formal notice given to the sovereign of the offending subjects is\nsupposed to amount to a knowledge of the fact, and it is presumed that\nevery sovereign is able to controul and punish his own subjects, unless\nthere be some defect in his authority: and a lapse of time, beyond what\nis usually taken for the punishment of civil offences in every country,\nmay be construed into wilful neglect. And such neglect amounts to a\nsanction of the offence.\n\nXXXI. It is likewise frequently made a subject of inquiry, whether a\nstate is answerable for the conduct of any of her people, who do not\ntake arms by her authority, but serve in the armies of some other\npower engaged in war. The Cerites, in Livy, clear themselves upon this\nprinciple, that it was not by their authority their people bore arms.\nAnd it is a well-founded opinion that no such permission ought to be\ndeemed as given, unless it appear from probable reasons that it was\nintended it should be granted: a thing sometimes done, according to\nthe example of the ancient Aetolians, who thought they had a right to\ndeprive every plunderer of his spoils. A custom the force of which\nPolybius expresses in the following words, \"when other powers, friends\nand allies of the Aetolians, are at war with each other, the Aetolians\nmay nevertheless serve in the armies on either side, destroying and\nspoiling their respective countries.\"\n\nXXXII. Again, a peace ought to be deemed broken, not only by any act of\nviolence done to the body politic itself, but to any of the subjects,\nwithout new grounds of war. For peace is made with a view to the\nsecurity of every individual subject: as the state in making peace acts\nfor the whole, and for all its parts.\n\nIndeed even if new grounds of war should arise, every one may, during\nthe continuance of peace, defend himself and his property. For it is a\nnatural right to repel force by force: a right which it cannot easily\nbe supposed that those, who are upon a footing of equality have ever\nrenounced.\n\nBut to practise revenge, or use violence in recovering things taken\naway will not be lawful, except where justice is denied. Justice may\nadmit of some delay: but the other method demands prompt execution, and\ntherefore should not be undertaken but in extreme emergency. But if\nthe subjects of any country persist in a course of uniform crime, and\naggression, repugnant to all natural and civil law, in defiance of the\nauthority of their own government, so that the hand of justice cannot\nreach them, it will be lawful for any one to deprive them of their\nspoils, and to exercise upon them the same rigour, as if they were\ndelivered up to punishment. But to attack other innocent persons on\nthat account is a direct violation of peace.\n\nXXXIII. Any act of violence also offered to allies, constitutes a\nbreach of the peace, but they must be such allies as are comprehended\nin the treaty.\n\nThe same rule holds good, even if the allies themselves have not made\nthe treaty, but others have done so on their behalf: since it is\nevident that those allies regarded the peace as ratified and valid. For\nthey are looked upon as enemies, till it is certain they have consented\nto the ratification.\n\nOther allies, or connections, who are neither subjects nor named in\nthe treaty of peace, form a distinct class, to whom any violence done\ncannot be construed into an act of breaking the peace. Yet it does not\nfollow that war may not be undertaken on such an account, but then it\nwill be a war resting entirely upon new grounds.\n\nXXXIV. A peace is broken by doing any thing contrary to the express\nterms of it; and by this is likewise meant the non-performance of\nengagements.\n\nXXXV. Nor can we admit of any distinction between articles of greater\nor minor importance.\n\nFor ALL the articles of a treaty are of sufficient magnitude to require\nobservance, though Christian charity may overlook the breach of them\nupon due acknowledgement. But to provide greater security for the\ncontinuance of a peace, proper clauses will be annexed to the minor\narticles, stating that any thing done against them shall not be deemed\nan infraction of the treaty: or that mediation shall be adopted in\npreference to having recourse to arms.\n\nXXXVI. This seems to have been plainly done in treaties, where any\nspecial penalty was annexed. A treaty indeed may be made upon, terms\nallowing the injured party his option either of enacting the penalty,\nor receding from his engagement: but the nature of the business rather\nrequires the method of mediation. It is evident and proved from the\nauthority of history, that one of the parties, who has not fulfilled\nhis engagement, owing to the neglect of the other to do so, is by\nno means guilty of breaking the peace: as his obligation was only\nconditional.\n\nXXXVII. If there is any unavoidable necessity to prevent one party\nfrom fulfilling his engagement, as for instance, if a thing has been\ndestroyed, or carried off, by which the restoration of it has become\nimpossible, a peace shall not thereby be deemed broken, the continuance\nof it not depending upon CASUAL conditions. But the other party may\nhave his option, either to prefer waiting, if there is any reason to\nhope that the engagement may be fulfilled at some future period, or\nto receive an equivalent, or to be released, on his side from some\ncorresponding article of the treaty.\n\nXXXVIII. It is honourable, and laudable to maintain a peace, even after\nit has been violated by the other party: as Scipio did, after the many\ntreacherous acts of the Carthaginians. For no one can release himself\nfrom an obligation by acting contrary to his engagements. And though it\nmay be further said that the peace is broken by such an act, yet the\nbreach ought to be taken in favour of the innocent party, if he thinks\nproper to avail himself of it.\n\nXXXIX. Lastly, a peace is broken by the violation of any special and\nexpress clause in the treaty.\n\nXL. In the same manner, those powers, who commit unfriendly acts, are\nguilty of breaking that peace, which was made solely upon condition\nof amicable relations being preserved. For what, in other cases, the\nduties of friendship alone would require, must here be performed by the\nlaw of treaty.\n\nAnd it is to treaties of this kind that many points may be referred,\nwhich are discussed by legal writers, relating to injuries done\nwithout force of arms, and to the offences of insults. According to\nthis principle, Tully has observed, that any offence committed after\na reconciliation is not to be imputed to neglect, but to wilful\nviolation, not to imprudence, but to treachery.\n\nBut here it is necessary, if possible, to exclude from the account\nevery charge of an odious kind. So that an injury done to a relation\nor subject of the person, with whom a treaty of peace has been made,\nis not to be deemed the same, as one done to himself, unless there are\nevident proofs that, through them, an attack upon him was intended. And\nan invasion of another's rights is often to be ascribed to new motives\nof rapacity, rather than to those of treachery.\n\nAtrocious menaces, without any new grounds of offence, are repugnant\nto all terms of amity. Any one may assume this threatening posture, by\nerecting new fortifications in his territory, as a means of annoyance\nrather than offence, by raising an unusual number of forces: when it is\nevident that these preparations can be designed against no one, but the\npower with whom he has concluded peace.\n\nXLI. Nor is it contrary to the relations of amity to receive individual\nsubjects, who wish to remove from the dominions of one power to those\nof another. For that is not only a principle of natural liberty, but\nfavourable to the general intercourse of mankind. On the same grounds\na refuge given to exiles may be justified. But it is not lawful to\nreceive whole towns, or great bodies, forming an integral part of the\nstate. Nor is it more allowable to receive those, who are bound to the\nservice of their own state by oath or other engagement.\n\nXLVI.[80] There are two kinds of arbitration, the one of such a nature\nthat it must be obeyed whether the decision be just or unjust, which,\nProculus says, is observed when, after a compromise, recourse is had to\narbitration.\n\nThe other kind of arbitration is where a matter ought to be left to\nthe decision of a person, in whose integrity confidence may be placed,\nof which Celsus has given us an example in his answer, where he says,\n\"though a freedman has sworn, that he will do all the services,\nwhich his patron may adjudge, the will of the patron ought not to be\nratified, unless his determination be just.\"\n\nThis interpretation of an oath, though conformable to the Roman laws,\nis by no means consistent with the simplicity of language considered by\nitself. For the justice of the case remains the same, in whatever way\nan arbiter is chosen, whether it be to reconcile contending parties, a\ncharacter, in which we find the Athenians acting between the Rhodians\nand Demetrius, or to make an absolute decree.\n\nAlthough the civil law may decide upon the conduct of such arbiters to\nwhom a compromise is referred, so as to allow of an appeal from their\ndecrees, or of complaints against their injustice, this can never take\nplace between kings and nations. For here there is no superior power,\nthat can either rivet or relax the bonds of an engagement. The decree\ntherefore of such arbiters must be final and without appeal.\n\nXLVII. With respect to the office of an arbiter or mediator, it is\nproper to inquire, whether the person has been appointed in the\ncharacter of a judge, or with powers more extensive and discretionary\nthan legal powers. Aristotle says that \"an equitable and moderate man\nwill have recourse to arbitration rather than to strict law, ADDING\nAS A REASON, because an arbitrator may consider the equity of the\ncase, whereas a judge is bound by the letter of the law. Therefore\narbitration was introduced to give equity its due weight.\"\n\nEquity does not signify in this place, as it does elsewhere, that\npart of justice, which gives a strict interpretation of the general\nexpressions of the law, according to the intention of the law-giver.\nFor that is left to the judge. But it includes every thing, which it\nis more proper to do than to omit, even beyond what is required by the\nexpress rules of justice.--Such kind of arbitration being common among\nindividuals and subjects of the same empire, it is recommended by St.\nPaul as a practice peculiarly proper for Christians. Yet in doubtful\ncases it ought not to be presumed that such extensive powers are\ngranted. For where there is any obscurity it abridges this latitude\nof decision: and especially in contested matters, between independent\nsovereigns, who, having no common judge, are supposed to bind the\nmediators, and arbitrators, whom they chuse, by the strictest rules of\nlaw.\n\nXLVIII. It is to be observed that arbitrators chosen by nations or\nsovereign princes may decide upon the matter in dispute, but not confer\na possession, which is a matter that can only be decided by established\nrules of civil law, for by the law of nations the right of possession\nfollows the right of property. Therefore while a cause is pending, no\ninnovation ought to be made, both to prevent partiality and prejudice,\nand because, after possession has been given, recovery is difficult.\nLivy in his account of some disputed points between the people of\nCarthage and Masinissa says, \"the Ambassadors did not change the right\nof possession.\"\n\nXLIX. There is another kind of arbitration, which takes place, when any\none makes an absolute surrender of himself and all his rights to an\nenemy or foreign power. But still a distinction ought to be made, even\nhere, between the bounds of right and wrong, limiting the submission of\nthe vanquished, on the one hand, and the authority of the conqueror, on\nthe other, to a certain degree.\n\nFor there are particular duties, which ought to be observed in the\nexercise of EVERY right. Taking the right of the conqueror in its\nliteral meaning and full extent, it is true that he is entitled to\nimpose ANY terms upon the conquered, who is now placed, by the external\nlaws of war, in a situation to be deprived of every thing, even\npersonal liberty or life, much more then, of all his property, either\nof a public or private kind.\n\nL. The first object of a conqueror should be to avoid committing\nany act of injustice, or using any rigour, except the demerits and\natrocity of the enemy require it; to take nothing but by way of lawful\npunishment. Observing these bounds, as far as security allows, it\nis always laudable to incline to moderation and clemency. Sometimes\neven circumstances may require such a line of conduct, and the best\nconclusion of any war is that, which reconciles all contending claims\nby a fair adjustment, and a general amnesty. The moderation and\nclemency to which the vanquished appeal, are by no means an abolition\nbut only a mitigation of the conqueror's absolute right.\n\nLI. There are conditional surrenders, reserving to the individuals,\ncertain personal privileges, and remains of their property, and to the\nstate, certain parts of its constitution.\n\nLII. Hostages and pledges may be considered as an appendage to\ntreaties. And some of those hostages are a voluntary surrender, and\nothers given by authority of the state as a security. For the sovereign\nhas the same power over the persons and actions of his subjects, as\nover their property. But the state or its ruler will be bound to\nrecompense individuals or their relatives for any inconveniences they\nmay sustain.\n\nLIII. Though the law of nations may in its literal rigour allow of\nputting hostages to death, it can never conscientiously be enforced,\nbut where they have committed crimes deserving of capital punishment.\nNeither can they be made slaves. Indeed the law of nations permits\nthem to leave their property to their heirs, although by the Roman law\nprovision was made for confiscating it to the state.\n\nLIV. If it should be asked whether hostages may lawfully make their\nescape: it may be answered in the negative, especially if, at first, or\nafterwards, they have pledged their faith to remain, upon condition of\nbeing prisoners at large. But it does not appear that states so much\nintended to impose a hardship upon their subjects by forbidding their\nescape, as to give the enemy security for the performance of their\nengagements.\n\nLV. The obligation of hostages is of an odious nature, as being\nunfriendly to personal liberty, and arising from the act of another.\nTherefore a strict interpretation must be given to such engagements,\nso that hostages delivered on one account cannot be detained on any\nother, nor for any contract, where hostages are not required. But if\nin another case there has been any violation of good faith, or any\ndebt contracted, hostages may be detained, not as hostages, but in\nthe capacity of subjects, whom the law of nations makes liable to be\nseized and detained for the acts of their sovereigns. To guard against\nwhich, provision may be made by additional clauses for the restoration\nof hostages, whenever the engagement for which they were delivered has\nbeen fulfilled.\n\nLVI. Whoever has been delivered as a hostage for other prisoners, or\nfor the redemption of other hostages, will naturally be released upon\nthe death of those persons. For by death the right of the pledge is\nextinguished in the same manner as by the ransom of a prisoner. And\ntherefore, according to Ulpian, as a PERSONAL debt is confined to him,\nwho has contracted it, so one person, being substituted for another,\ncannot be detained any longer than while the obligation of that other\ncontinues.\n\nLVII. The decision, whether hostages can be detained upon the death of\nthe sovereign, by whom they were delivered, must depend upon the nature\nof the engagements, which he has made. If they are PERSONAL, they\ncontinue in force only during his natural life, but if they are what\nare called REAL or more PERMANENT treaties, they pass with all their\nconsequences to his successors. For ACCESSORY articles cannot authorise\nany deviation from the GENERAL rule of interpreting the fundamental and\nprincipal points of a treaty, but the accessory articles themselves\nought rather to be explained in conformity to those general rules.\n\nLVIII. A cursory observation may be made, that hostages are sometimes\nconsidered, not as appendages, but as forming the principal part of an\nengagement, where any one is bound not for himself, but for another,\nand, in case of non-performance, being obliged to pay damages, his\nhostages or sureties are answerable in his stead.--There is not only\nsome thing of harshness, but even injustice in the opinion that\nhostages may be bound for the conduct of another even without their own\nconsent.\n\nLIX. Pledges have some characteristics in common with hostages, and\nsome peculiar to themselves. It is a common characteristic of both to\nbe detained for something else that is due, except where public faith\nis given, and provision made to the contrary. Pledges may be detained\nwith greater latitude than hostages; which is one of their peculiar\ncharacteristics, there being less of odium in the former case than in\nthe latter: THINGS being of a nature more proper for detention than\nPERSONS.\n\nLX. No time can bar the redemption of a pledge, whenever the engagement\nfor which it was given is fulfilled. For it is never to be presumed\nthat engagements proceed from new causes, when old and known causes\ncan be assigned. If a debtor therefore has forborne to redeem a pledge,\nwe may still suppose that he has not abandoned his original engagement,\nunless there be clear proof to the contrary: as if, for instance,\nthough desirous of redeeming it, he has been prevented, or suffered a\nspace of time to elapse unnoticed, that would be requisite to imply his\nconsent.\n\n\n\n\nCHAPTER XXI.\n\nON FAITH DURING THE CONTINUANCE OF WAR, ON TRUCES, SAFE-CONDUCTS, AND\nTHE REDEMPTION OF PRISONERS.\n\n Truces of an intermediate denomination between peace and war--Origin\n of the word--New declaration of war not necessary after a\n truce--Time from whence a truce and all its correspondent\n obligations and privileges commence--A retreat may be made, or\n fortifications repaired during a truce--Distinction respecting\n the occupying of places--The case of a person prevented from\n making his retreat, and taken in the enemy's territories at\n the expiration of a truce, considered--Express terms and\n consequences of a truce--Breach of a truce by one party justifies\n a renewal of war by the other--Penalty annexed--Truce broken\n by the acts of individuals--Rights belonging to safe-conducts\n without a truce--Persons in a military capacity how far\n allowed the benefit of a safe-conduct--Privileges of goods\n arising from thence--Attendants of the person protected by a\n safe-conduct--Safe-conduct does not expire upon the death of\n the grantor--Safe-conduct given to continue during the pleasure\n of the grantor--Protection thereof extending beyond his own\n territory--Redemption of prisoners favoured, and not to be\n prohibited by law.\n\n\nI. and II. In the midst of war there are certain points generally\nconceded by the belligerent powers to each other, which Tacitus\nand Virgil call the intercourse of war, and which comprehend\ntruces, safe-conducts, and the redemption of prisoners.--Truces are\nconventions, by which, even during the continuance of war, hostilities\non each side cease for a time. DURING THE CONTINUANCE OF WAR; for, as\nCicero says, in his eighth Philippic, between peace and war there is\nno medium. By war is meant a state of affairs, which may exist even\nwhile its operations are not continued. Therefore, as Gellius has said,\na peace and a truce are not the same, for the war still continues,\nthough fighting may cease. So that any agreement, deemed valid in the\ntime of war, will be valid also during a truce, unless it evidently\nappears that it is not the state of affairs, which is considered, but\nthe commission of particular acts of hostility. On the other hand, any\nthing, agreed to, to be done, when peace shall be made, cannot take\nplace in consequence of a truce. There is no uniform and invariable\nperiod fixed for the continuance of a truce, it may be made for\nany time, even for twenty, or thirty years, of which there are many\ninstances in ancient history. A truce, though a repose from war, does\nnot amount to a peace, therefore historians are correct in saying that\na peace has often been refused, when a truce has been granted.\n\nIII. After a truce a new declaration of war is not necessary.\n\nFor upon the removal of a temporary impediment, the state of warfare\nrevives in full force, which has only been lulled asleep, but not\nextinguished. Yet we read in Livy, that it was the opinion of the\nheralds' college, that after the expiration of a truce war ought\nto be declared. But the ancient Romans only meant to shew by those\nsuperfluous precautions, how much they loved peace, and upon what just\ngrounds they were dragged into war.\n\nIV. The time, generally assigned for the continuance of a truce, is\neither some uninterrupted period, of a HUNDRED DAYS, for instance, or\na space limited by some artificial boundary of time, as the Calends of\nMarch. In the former case, the calculation is to be made according to\nthe natural motion of time: whereas all civil computations depend upon\nthe laws and customs of each country. In the other case it is generally\nmade a matter of doubt, whether in naming any particular day, month or\nyear, for the expiration of a truce, that particular day, month, or\nyear, are comprehended in the term of the truce, or excluded from it.\n\nIn natural things there are two kinds of boundaries, one of which forms\nan inseparable part of the things themselves, as the skin does of the\nbody, and the other only adjoins them, as a river adjoins the land,\nwhich it bounds or washes. In either of these ways voluntary boundaries\nmay be appointed. But it seems more natural for a boundary to be\ntaken as a part of the thing itself. Aristotle defines the extremity\nof anything to be its boundary: a meaning to which general custom\nconforms:--thus if any one has said that a thing is to be done before\nthe day of his death, the day on which he actually dies is to be taken\ninto the account as forming part of the term. Spurinna had apprised\nCaesar of his danger, which could not extend beyond the Ides of March.\nBeing accosted, respecting the matter, on the very day, he said, the\nIdes of March are come, but not passed. Such an interpretation is the\nmore proper where the prolongation of time is of a favourable nature,\nas it is in truces, which are calculated to suspend the effusion of\nhuman blood.\n\nThe day, FROM which any measure of time is said to begin, cannot be\ntaken into the account; because the word, FROM, used on that occasion,\nimplies separation and not conjunction.\n\nV. It is to be observed that truces, and engagements of that kind\nimmediately bind the contracting parties themselves from the very\nmoment they are concluded. But the subjects on either side are only\nbound from the time that those engagements have received the form\nof a law, for which public notice and the regular promulgation are\nnecessary. Upon this being done they immediately derive their authority\nto bind the subjects. But if notice thereof has only been given in one\nplace, the observance of them cannot be enforced through the whole\ndominions of the respective sovereigns at one moment, but sufficient\ntime must be allowed for the due promulgation of them to be made in\nevery part. Therefore if in the meantime the subjects on either side\nhave committed an infraction of the truce, they shall be exempt from\npunishment, but the contracting parties themselves shall be obliged to\nrepair the damages.\n\nVI. The very definition of a truce implies what actions are lawful, and\nwhat are unlawful during the continuance of it. All acts of hostility\nare unlawful either against the persons or goods of an enemy. For every\nact of violence during a truce is contrary to the law of nations.\nEven things belonging to an enemy, which by any accident have fallen\ninto our hands, although they had been ours before, must be restored.\nBecause they had become theirs by that external right according to\nwhich such things are adjudged. And this is what Paulus the lawyer\nsays, that during the time of a truce the law of postliminium cannot\nexist, because to constitute the law of postliminium there must be the\nprevious right of making captures in war, which ceases upon the making\nof a truce.\n\nEither party may go to or return from, any particular place, but\nwithout any warlike apparatus or force, that may prove a means of\nannoyance, or be attended with any danger. This is observed by Servius\non that passage of Virgil, where the poet says, \"the Latins mingled\nwith their foes with impunity,\" where he relates also that upon a\ntruce being made between Porsenna and the Romans during a siege, when\nthe games of the circus were celebrating, the generals of the enemy\nentered the city, contented in the lists, and were many of them crowned\nas conquerors.\n\nVII. To withdraw farther into the country with an army, which we find\nfrom Livy that Philip did, is no way contrary to the intention and\nprinciples of a truce: neither is it any breach of it to repair the\nwalls of a place, or to raise new forces, unless it has been prohibited\nby special agreement.\n\nVIII. To corrupt an enemy's garrisons, in order to seize upon the\nplaces which he holds, is undoubtedly a breach of the spirit and letter\nof any truce. For no such advantage can justly be gained but by the\nlaws of war. The same rule is to be laid down respecting the revolt\nof subjects to an enemy. In the fourth book of Thucydides, Brasidas\nreceived the city of Menda, that revolted from the Athenians to the\nLacedaemonians during a truce, and excused his conduct upon the plea of\nthe Athenians having done the same.\n\nEither of the belligerent powers may take possession of places that\nhave been deserted: if they have been REALLY deserted by the former\nowner with the intention never to occupy them again, but not merely\nbecause they have been left unguarded, either BEFORE, or AFTER, the\nmaking of a truce. For the former owner's right of dominion therein\nstill remaining renders another's possession of them unjust. Which is a\ncomplete refutation of the cavil of Belisarius against the Goths, who\nseized upon some places during a truce, under pretext of their being\nleft without garrisons.\n\nIX. It is made a subject of inquiry, whether any one being prevented by\nan unforeseen accident from making his retreat, and being taken within\nthe enemy's territories, at the expiration of a truce, has a right to\nreturn. Considering the external law of nations he is undoubtedly upon\nthe same footing as one, who, having gone into a foreign country must,\nupon the sudden breaking out of war, be detained there as an enemy\ntill the return of peace. Nor is there any thing contrary to strict\njustice in this; as the goods and persons of enemies are bound for the\ndebt of the state, and may be seized for payment. Nor has such a one\nmore reason to complain than innumerable other innocent persons, on\nwhose heads the calamities of war have fallen. Nor is there occasion\nto refer to the case, which Cicero has alleged, in his second book ON\nINVENTION, of a ship of war driven by the violence of the wind into a\nport, where by law it was liable to confiscation. For in the former\ncase the unforeseen accident must do away all idea of punishment,\nand in the latter, the right of confiscation must be suspended for a\ntime. Yet there can be no doubt but there is more of generosity and\nkindness in releasing such a person than in insisting upon the right of\ndetaining him.\n\nX. The express nature of a convention renders some things unlawful\nduring a truce, as for instance, if it is granted only in order to\nbury the dead, neither party will have a right to depart from those\nconditions. Thus if a siege is suspended by a truce, and nothing more\nthan such a suspension is thereby granted; the besieged cannot lawfully\navail himself of it, to convey fresh supplies of troops and stores into\nthe place. For such conventions ought not to prove beneficial to one\nparty, to the prejudice of the other, who grants them. Sometimes it is\nstipulated that no one shall be allowed to pass to and fro. Sometimes\nthe prohibition extends to persons and not to goods. In which case,\nif any one, in protecting his goods, hurts an enemy, the act will not\nconstitute a breach of the truce. For as it is lawful that either party\nshould defend his property, an accidental circumstance cannot be deemed\nan infringement of that personal security, which was the principal\nobject provided for by the truce.\n\nXI. If the faith of a truce is broken by one of the parties, the\nother who is thereby injured, will undoubtedly have a right to renew\nhostilities without any formal declaration. For every article in a\ntreaty contains an implied condition of mutual observance. Indeed we\nmay find in history instances of those, who have adhered to a truce\ntill its expiration, notwithstanding a breach on the other side. But on\nthe other hand there are numerous instances of hostilities commenced\nagainst those, who have broken their conventions: a variation, which\nproves that it is at the option of the injured party to use or not to\nuse his right of renewing war upon the breach of a truce.\n\nXII. It is evident that, if the stipulated penalty is demanded of the\naggressor, and paid by him, the other party can no longer maintain his\nright of renewing the war. For the payment of the penalty restores\nevery thing to its original footing. And on the other hand, a renewal\nof hostilities implies an intention of the injured party to abandon the\npenalty, since he has had his option.\n\nXIII. A truce is not broken by the acts of individuals, unless they\nare sanctioned by the authority of the sovereign, which is generally\nsupposed to be given, where the delinquents are neither punished nor\ndelivered up, nor restitution is made of goods taken away.\n\nXIV. The rights belonging to a safe-conduct are a privilege distinct\nfrom the nature of a truce, and our interpretation of them must be\nguided by the rules laid down respecting privileges.\n\nSuch a privilege, to be perfect, must be neither injurious to a third\nperson, nor prejudicial to the giver. Therefore in explaining the\nterms, in which it is couched, a greater latitude of interpretation\nmay be allowed, especially where the party suing for it receives no\nbenefit, but rather confers one, and still more so where the advantage,\naccruing to the individual from thence, redounds also to the public\nbenefit of the state.\n\nTherefore the literal interpretation, which the words may bear, ought\nto be rejected, unless otherwise some absurdity would follow, or there\nis every reason to suppose that such a literal interpretation is most\nconformable to the will and intention of the parties concerned. In the\nsame manner, on the other hand, a greater latitude of interpretation\nmay be allowed, in order to avoid the same apprehended absurdity, or\nto comply more fully with the most urgent and forcible conjectures\nrespecting the will of the contracting parties.\n\nXV. Hence we may infer that a safe-conduct, granted to SOLDIERS,\nincludes not only those of an INTERMEDIATE RANK, but the HIGHEST\nCOMMANDERS. For that is a signification strictly and properly\nauthorised by the words themselves, although they MAY be taken in a\nmore LIMITED meaning. So the term clergymen includes those of episcopal\nas well as those of inferior rank, and by those serving on board a\nfleet, we mean not only sailors, but all persons found there, who have\ntaken the military oath.\n\nXVI. Where a free passage is granted, liberty to return is evidently\nimplied, not from the literal force of the expressions themselves, but\nto avoid the absurdity which would follow the grant of a privilege,\nthat could never be made use of. And by the liberty of coming and\ngoing is meant a safe passage till the person arrives in a place of\nperfect security. From hence the good faith of Alexander was impeached,\nwho ordered those to be murdered on the way, whom he had allowed to\ndepart.\n\nAny one may be allowed to go away without being allowed to return.\nBut no power can properly refuse admitting any one, to whom he has\ngranted leave to come, and on the other hand, his admission implies\nsuch a leave to have been given. GOING AWAY and RETURNING are indeed\nvery different, nor can any construction of language give them the same\nmeaning. If there be any mistake, although it may confer no right, it\nexempts the party from all penalties.--A person permitted to come shall\nonly come ONCE, but not a SECOND TIME, unless the additional mention of\nsome time may supply room to think otherwise.\n\nXVII. A son shares the fate of his father, and a wife of her husband\nno farther than as to the right of residing, for men reside with their\nfamilies, but in general undertake public missions without them.\nYet one or two servants, though not expressly named, are generally\nunderstood to be included in a safe-conduct, especially where it would\nbe improper for the person to go without such attendants. For every\nnecessary consequence is understood to go along with any privilege that\nis given.\n\nXVIII. In the same manner no other effects are included in a\nsafe-conduct, but such as are usually taken on a journey.\n\nXIX. The name of attendants, expressed in a safe-conduct, granted to\nany one, will not allow him to extend the protection of it to men\nof atrocious and criminal characters, such as pirates, robbers, and\ndeserters. And the COUNTRY of the attendants being named shews that the\nprotection cannot extend to those of another nation.\n\nXX. The privileges of a safe-conduct do not, in doubtful cases, expire\nupon the demise of the sovereign who granted it, according to what was\nsaid in a former part of this treatise on the nature of favours granted\nby kings and sovereign princes.\n\nXXI. It has often been a disputed point, what is meant by the\nexpression used in a safe-conduct, that it shall continue during the\nPLEASURE OF THE GRANTOR. But there seems most reason and truth in the\nopinion of those, who maintain that the privilege shall continue, till\nthe grantor make some new declaration of his will to the contrary.\nBecause, in doubtful cases, a favour is presumed to continue, till\nthe right, which it conveys, is accomplished. But not so, where all\npossibility of WILL in the grantor has ceased, which happens by his\ndeath. For upon the death of the person all presumption of his WILL\ncontinuing must cease: as an accident vanishes when the substance is\ndestroyed.\n\nXXII. The privilege of a safe-conduct protects the person, to whom it\nis given, even beyond the territories of the grantor: because it is\ngiven as a protection against the rights of war, which are not confined\nto his territory.\n\nXXIII. The redemption of prisoners is much favoured, particularly among\nChristian states, to whom the divine law peculiarly recommends it as a\nkind of mercy. Lactantius calls the redemption of prisoners a great and\nsplendid office of justice.\n\n\n\n\nCHAPTER XXII.\n\nON THE FAITH ON THOSE INVESTED WITH SUBORDINATE POWERS IN WAR.\n\n Commanders--Extent of their engagements in binding the\n sovereign--Exceeding their commission--The opposite party bound by\n such engagements--Power of commanders in war, or of magistrates\n with respect to those under their authority--Generals cannot make\n peace, but may conclude a truce--Extent of their authority in\n granting protection to persons and property--Such engagements to be\n strictly interpreted--Interpretation of capitulations accepted by\n generals--Precautions necessary till the pleasure of the sovereign\n be known--Promise to surrender a town.\n\n\nI. Ulpian reckons the agreements, entered into between the generals of\nopposite armies during the course of a war, among public conventions.\nSo that after explaining the nature of the faith pledged by sovereign\npowers to each other, it will be proper to make a short inquiry into\nthe nature of engagements made by subordinate authorities; whether\nthose authorities bear a near approach to supreme power, as commanders\nin chief, or are removed to a greater distance from it. Caesar makes\nthe following distinction between them, observing that the offices of\ncommander and deputy are very different; the latter being obliged to\nact according to prescribed rules, and the former having unqualified\ndiscretion in matters of the highest importance.\n\nII. The engagements of those invested with such subordinate powers are\nto be considered in a double point of view, whether they are binding\nupon the sovereign, or only upon themselves. The former of these\npoints has been already settled in a former part of this treatise,\nwhere it was shewn that a person is bound by the measures of an agent,\nwhom he has appointed to act in his name, whether his intentions have\nbeen expressly named, or are only to be gathered from the nature\nof the employment. For whoever gives another a commission, gives\nhim along with it every thing in his power that is necessary to the\nexecution of it. So that there are two ways, in which persons acting\nwith subordinate powers may bind their principals by their conduct,\nand that is, by doing what is probably thought to be contained in\ntheir commission, or apart from that, by acting according to special\ninstructions, generally known, at least to those, with whom they treat.\n\nIII. There are other modes too, in which a sovereign may be bound\nby the previous act of his minister; but not in such a manner as to\nsuppose the obligation owes its EXISTENCE to that action, which only\ngives occasion to its fulfilment. And there are two ways, in which this\nmay happen, either by the consent of the sovereign, or by the very\nnature of the thing itself. His consent appears by his ratification of\nthe act, either expressed or implied, and that is, where a sovereign\nhas known and suffered a thing to be done, which can be accounted for\nupon no other motive but that of approval and consent.\n\nThe very nature and obligation of all contracts imply that one party\nis not to gain advantage by the loss of another. Or if advantage\nis expected from a contract, the contract must be fulfilled or the\nadvantage abandoned. And in this sense, and no other, the proverbial\nexpression, that whatever is beneficial is valid, is to be understood.\n\nOn the other hand a charge of injustice may fairly be brought against\nthose, who condemn an engagement, yet retain the advantages, which they\ncould not have had without it.\n\nIV. It is necessary to repeat an observation made before, that a\nsovereign, who has given a commission to another, is bound by the\nconduct of that person, even though he may have acted contrary to his\nsecret instructions, provided he has not gone beyond the limits of his\nostensible, and public commission.\n\nThis was a principle of equity, which the Roman Praetor observed in\nactions brought against employers for the conduct of their agents\nor factors. An employer could not be made answerable for any act or\nmeasure of his factor, but such as was immediately connected with the\nbusiness, in which he employed him. Nor could HE be considered as an\nappointed agent, with WHOM the public were apprised, by due notice, to\nmake no contract--If such notice was given, without having come to the\nknowledge of the contracting parties, the employer was bound by the\nconduct of the agent. If any one chuses to make a contract on certain\nconditions, or through the intervention of a third person, it is right\nand necessary for that person to observe the particular conditions on\nwhich he is employed.\n\nFrom hence it follows that kings and nations are more or less bound\nby the conventions of their commanders in proportion as their laws,\nconditions, and customs, are more or less known. If the meaning of\ntheir intentions is not evident, conjecture may supply the place of\nevidence, as it is natural to suppose that any one employed would be\ninvested with full powers sufficient to execute his commission.\n\nA person acting in a subordinate capacity, if he has exceeded the\npowers of his commission will be bound to make reparation, if he cannot\nfulfil his engagement, unless he is prevented from doing so by some\nwell known law.\n\nBut if he has been guilty of treachery also, in pretending to greater\npowers than he really possessed, he will be bound to repair the injury,\nwhich he has WILFULLY done, and to suffer punishment corresponding\nwith his offence. For the first of these offences, his property is\nanswerable, and on failure of that, his personal liberty: and in\nthe latter case, his person or property, or both must be answerable\naccording to the magnitude of the crime.\n\nV. As a sovereign or his minister is always bound by every contract, it\nis certain the other party will also be bound by the engagement: nor\ncan it be deemed imperfect. For in this respect there is a comparative\nequality between sovereign and subordinate powers.\n\nVI. It is necessary to consider too what are the powers of subordinate\nauthorities over those beneath them. Nor is there any doubt that a\ngeneral may bind the army, and a magistrate, the inhabitants of a place\nby those actions, which are usually done by commanders, or magistrates,\notherwise their consent would be necessary.\n\nOn the other hand, in engagements purely beneficial, the advantage\nshall be on the side of the inferior: for that is a condition\ncomprehended in the very nature of power.--Where there is any\nburdensome condition annexed it shall not extend beyond the usual\nlimits in which authority is exercised; or if it does, it shall be at\nthe option of the inferior to accept or refuse that condition.\n\nVII. As to the causes and consequences of a war, it is not within the\nprovince of a general to decide them. For concluding and conducting\na war are very different things, and rest upon distinct kinds of\nauthority.\n\nVIII. and IX. As to granting truces, it is a power which belongs not\nonly to commanders in chief, but also to inferior commanders. And they\nmay grant them for themselves, and the forces immediately under their\ncommand, to places which they are besieging or blockading: but they do\nnot thereby bind other parts of the army. Generals have no right to\ncede nations, dominions, or any kind of conquests made in war. They\nmay relinquish any thing of which a complete conquest has not been\nmade: for towns frequently surrender on condition of the inhabitants\nbeing spared, and allowed to retain their liberty and property: cases,\nin which there is no time for consulting the will and pleasure of the\nsovereign. In the same manner, and upon the same principle this right\nis allowed to subordinate commanders, if it falls within the nature of\ntheir commission.\n\nX. As commanders, in all such engagements, are acting in the name of\nothers, their resolutions must not be interpreted so strictly as to\nbind their sovereigns to greater obligations than they intended to\nincur, nor at the same time to prove prejudicial to the commanders\nthemselves for having done their duty.\n\nXI. An absolute surrender implies that the party so capitulating\nsubmits to the pleasure and discretion of the conqueror.\n\nXII. In ancient conventions a precaution was usually added, that they\nwould be ratified, if approved of by the Roman people. So that if\nno ratification ensued, the general was bound no further than to be\nanswerable for any advantage that might have accrued to himself.\n\nXIII. Commanders having promised to surrender a town, may dismiss the\ngarrison.\n\n\n\n\nCHAPTER XXIV.[81]\n\nON TACIT FAITH.\n\n Tacit faith--Example of in desiring to be taken under the protection\n of a king or nation--Implied in the demand or grant of a\n conference--Allowable for the party seeking it to promote his own\n interest thereby provided he uses no treachery--Meaning of mute\n signs allowed by custom.\n\n\nI. Both public, private, and mixed, conventions admit of tacit consent,\nwhich is allowed by custom. For in whatever manner consent is indicated\nand accepted it has the power of conveying a right. And, as it has\nbeen frequently observed in the course of this treatise, there are\nother signs of consent besides words and letters: some of them indeed\nnaturally rising out of the action itself.\n\nII. An example of such tacit agreement may be found in the case of\na person coming from an enemy, or foreign country, and surrendering\nhimself to the good faith of another king or people. For such a one\ntacitly binds himself to do nothing injurious or treacherous to that\nstate, where he seeks protection, a point which is beyond all doubt.\n\nIII. In the same manner, a person who grants or requests a conference,\ngives a tacit promise, that he will do nothing prejudicial to the\nparties, who attend it. Livy pronounces an injury done to an enemy,\nunder the pretext of holding a conference, a violation of the law of\nnations.\n\nIV. But such a tacit promise, to take no advantage of a parley or\nconference, is not to be carried farther than what has been said.\nProvided all injury and injustice are avoided, it is reckoned a lawful\nstratagem, for any one to avail himself of a parley in order to draw\noff the enemy's attention from his military projects, and to promote\nhis own. The device, by which Asdrubal extricated his army from the\nAusetanian forests, was of this kind, and by the same means Scipio\nAfricanus, the elder, gained a perfect knowledge of Syphax's camp.\nBoth these circumstances are related by Livy.\n\nV. There are certain mute signs, deriving all their force and meaning\nfrom custom; such as the fillets, and branches of olive formerly used:\namong the Macedonians pikes erected, and among the Romans shields\nplaced upon the head, were signs of a suppliant surrender obliging the\nparty to lay down his arms. In the present day a white flag is a sign\nof suing for a parley. Therefore all these methods have the force of\nexpress declarations.\n\n\n\n\nCHAPTER XXV.\n\nCONCLUSION.\n\n Admonitions to the observance of good faith--Peace always to be kept\n in view in the midst of war--Peace beneficial to the conquered--To\n the conqueror--And to be chosen in cases where the issue is\n doubtful--To be religiously observed--Prayer--Conclusion of the\n work.\n\n\nI. Here seems to be the proper place to bring this work to a\nconclusion, without in the least presuming that every thing has been\nsaid, which might be said on the subject: but sufficient has been\nproduced to lay a foundation, on which another, if he pleases, may\nraise a more noble and extensive edifice, an addition and improvement\nthat will provoke no jealousy, but rather be entitled to thanks.\n\nBefore entirely dismissing the subject, it may be necessary to observe,\nthat, as in laying down the true motives and causes, that alone will\njustify war, every possible precaution at the same time was taken\nto state the reasons for which it should be avoided; so now a few\nadmonitions will not be deemed superfluous, in order to point out\nthe means of preserving good faith in war, and maintaining peace,\nafter war is brought to a termination, and among other reasons for\npreserving good faith the desire of keeping alive the hope of peace,\neven in the midst of war, is not the least important. For good faith,\nin the language of Cicero, is not only the principal hold by which\nall governments are bound together, but is the key-stone by which the\nlarger society of nations is united. Destroy this, says Aristotle, and\nyou destroy the intercourse of mankind.\n\nIn every other branch of justice there is something of obscurity, but\nthe bond of faith is clear in itself, and is used indeed to do away\nthe obscurity of all transactions. The observance of this is a matter\nof conscience with all lawful kings and sovereign princes, and is the\nbasis of that reputation by which the honour and dignity of their\ncrowns are maintained with foreign nations.\n\nII. In the very heat of war the greatest security and expectation of\ndivine support must be in the unabated desire, and invariable prospect\nof peace, as the only end for which hostilities can be lawfully begun.\nSo that in the prosecution of war we must never carry the rage of it so\nfar, as to unlearn the nature and dispositions of men.\n\nIII. These and these alone would be sufficient motives for the\ntermination of war, and the cultivation of peace. But apart from all\nconsiderations of humanity, the INTERESTS of mankind would inevitably\nlead us to the same point. In the first place it is dangerous to\nprolong a contest with a more powerful enemy. In such a case some\nsacrifices should be made for the sake of peace, as in a storm goods\nare sometimes thrown overboard to prevent a greater calamity, and to\nsave the vessel and the crew.\n\nIV. Even for the stronger party, when flushed with victory, peace is\na safer expedient, than the most extensive successes. For there is\nthe boldness of despair to be apprehended from a vanquished enemy,\ndangerous as the bite of a ferocious animal in the pangs of death.\n\nV. If indeed both parties are upon an equal footing, it is the opinion\nof Caesar, that it is the most favourable moment for making peace, when\neach party has confidence in itself.\n\nVI. On whatever terms peace is made, it must be absolutely kept. From\nthe sacredness of the faith pledged in the engagement, and every\nthing must be cautiously avoided, not only savouring of treachery,\nbut that may tend to awaken and inflame animosity. For what Cicero\nhas said of private friendships may with equal propriety be applied\nto public engagements of this kind, which are all to be religiously\nand faithfully observed, especially where war and enmity have ended in\npeace and reconciliation.\n\nVII. And may God, to whom alone it belongs to dispose the affections\nand desires of sovereign princes and kings, inscribe these principles\nupon their hearts and minds, that they may always remember that the\nnoblest office, in which man can be engaged, is the government of men,\nwho are the principal objects of the divine care.\n\n\n\n\nINDEX\n\n\n Abandoned property, title to, 107, 111.\n\n Acceptance: Necessity of, in promise to convey a right, 139.\n\n Acceptilation, 111.\n\n Accessories to crimes, 197, 257.\n\n Accomplices, punishment of, 256.\n\n Acquisitions: Of property in war, 334 _et seq._, 346.\n Of dominion, 379.\n\n Actions at law: Stipulations as to, in treaties, 390.\n\n Admiralty, 146.\n\n Affirmations, 164, 165.\n\n Agency, 339, 412.\n\n Agents: Acts of, binding on principal, 138, 139, 412.\n\n Agreements: Special and exclusive, 101.\n Between citizens of different countries, 136.\n\n Alexandrinus, Clemens, 52.\n\n Alienation: Of things by right of war, 353, 389.\n Of public dominion, 386.\n\n Alliances: Between states, partnerships, 146.\n Unequal, 158, 170.\n\n Allies: Aid to, 173.\n Word construed, 183.\n Causes justifying participation of, in war, 285, 287.\n Rewards to, 341.\n\n Ambassadors: Promises of, binding, 139.\n Ratification of treaties made by, 167.\n Inviolability of, 202, 204.\n Must be duly accredited, 202.\n Sovereign states may send, 203.\n Refusal to receive, 204.\n Exemptions, 205, 209, 210, 211, 313.\n Punishment of, for crimes, 208.\n Passage through foreign states, 209.\n Suite and personal effects of, 211.\n House of, as asylum, 211.\n Debts contracted by, 212.\n\n Ambrose, 54.\n\n Andronicus, 24.\n\n Antoninus, Marcus, 66.\n\n Antoninus, Pius, 112.\n\n Aptitude, 19.\n\n Arbiter, office of, 398.\n\n Arbitration, 84, 276, 397.\n\n Arcifinium, 106.\n\n Aristotle, 19, 20, 22, 24, 61, 62, 64, 76, 118, 120, 190, 218, 251,\n 268.\n\n Asylum, right of, 260.\n\n Augustine, 58, 74.\n\n Aurelius, Marcus, 52, 68.\n\n\n Barbeyrac, 173, 392.\n\n Blackstone's Commentaries, 29, 61, 86, 100, 136, 154, 155, 156, 177,\n 182--_notes_.\n\n Bodies politic, privileges of, 262.\n\n Boundary, rivers as, 107.\n\n Breach of peace, 395.\n\n Burial, right of, 213 _et seq._\n\n Burke, Edmund, 282 _note_.\n\n\n Caduceum, use of, 320.\n\n Caesar, Julius, 59.\n\n Captures in war, 334, 369.\n Title to, 335, 336, 338.\n Things immovable, 339.\n Things movable, 340.\n Restoration of, 392.\n\n Cargo, in enemy's ships, title to, 337.\n\n Cassius, 60, 74.\n\n Cato, 59, 77.\n\n Causes of war, justifiable, 85.\n\n Chirographarii, 173.\n\n Chrysostom, Dio, 25.\n\n Cicero, 18, 23, 24, 31, 34, 35, 60, 68, 78, 86, 89, 92, 137, 191, 208,\n 214, 215, 268, 283, 317, 379.\n\n Civil law: Relation of, to law of nature, 91.\n And interpretation of treaties, 194.\n Prizes taken from Pirates, 357.\n Right of postliminium under, 357.\n\n Clarigation, 319.\n\n Commerce, treaties of, 169, 170.\n\n Commissions: Special, of ambassador, 167.\n Variations from, 188.\n\n Common right to actions, 99.\n\n Common right to things, 99.\n\n Community of goods, 86.\n Of lands, 88.\n\n Compensation, defined, 382.\n\n Compromise: As method of settling national disputes, 276.\n\n Conditional surrender, 400.\n\n Conference: To settle disputes of nations, 276.\n\n Conqueror, rights of, 399.\n\n Conquest, rights resulting from, 348, 399.\n\n Consent to conventions, 415.\n\n Consideration of contracts, 136, 138.\n\n Constantine, 53, 54.\n\n Contracts: Expressed and implied, 100, 145.\n Between citizens of different countries, 136.\n Consideration for, 136, 137.\n Of agents, 137.\n Exchange, 145, 146.\n Revocation of, 145.\n Of sale, 146, 151.\n Mixed, 147.\n Equality in, 148.\n Letting and hiring, 153.\n Fraudulent, 199.\n Of sovereigns, 387, 413.\n\n Contributions levied for future security, 373.\n\n Conventions: Public and private, 166.\n Public, division of, 167.\n Requiring ratification, 167, 174, 412, 414.\n Power to make, in monarchies, 168.\n Resting in law of nature, 168.\n Of commerce and amity, 169.\n Of peace, 170.\n Obligations of negotiator, 174.\n Truces, 403.\n Made by subordinates, 411.\n Tacit consent to, 415.\n\n Corporeal rights, 85.\n\n Countries, names of, 392.\n\n Creditors, personal, 173.\n\n Crimes: Principals and accessories, 197, 198, 257.\n And misdemeanors, 241.\n\n\n Damages, 196, 197, 199, 200, 388.\n\n Debts, individual, effect of war upon, 391.\n\n Deception, innocent, 302.\n\n Declaration of war, 318, 321.\n After truce, not necessary, 404.\n\n Defense: A justifiable cause of war, 75.\n Right of, 395.\n\n Demand of restitution, 319.\n\n Demosthenes, 74, 81, 170, 240, 310.\n\n Deserters: Not entitled to right of postliminium, 355, 390.\n\n Dictator, sovereign power of, 72.\n\n Dionysius, 61, 74, 98, 163.\n\n Disputes of nations, methods of settlement, 276.\n\n Divided and assigned land, 106.\n\n Dominion, acquisition of, 372.\n\n Duration of truces, 404.\n\n Duties: Right to impose, on goods in transit, 97.\n\n Duty of citizen to prevent war, 286.\n\n\n Eliminium, 351.\n\n Enemies: Furnishing aid to, 293-321.\n Public, 314.\n Killing of, 325, 327, 359.\n Foreign residents may become, 327.\n Property of, right to destroy, 332, 365, 366.\n Forbearance toward, 373.\n Good faith between, 379.\n\n Engagements, 167.\n Of sovereigns or states, 387.\n\n Epictetus, 22.\n\n Equity: A species of justice, 190.\n In interpreting treaties, 191.\n In matters of arbitration, 398.\n\n Euripides, 22, 78.\n\n Exchange, contracts of, 145.\n\n Extradition, 258, 259.\n\n\n Factors: Acts of, bind merchants, when, 139, 412.\n\n Faculty, definition of, 19.\n\n Falsehood, discussed, 299 _et seq._\n\n Fecial law of Rome, 319.\n\n Federal Union, 62, 121.\n\n Ferae naturae, 86.\n Rights of sovereign as to, 91.\n\n Fishing, a common right, 101.\n\n Florentinus, 19, 35.\n\n Foreign residents, rights of, 98, 327.\n\n Free passage through countries, right of, 95, 97.\n Permission first asked, 96.\n\n Funeral rites, 214.\n\n\n Galen, 33, 62.\n\n Good faith, foundation of all treaties, 385, 417.\n\n Goods in enemy's ships, title to, 337.\n\n Government: Change of form of, effect upon debts, 121.\n Effects on treaties, 185.\n Mixed, 349.\n\n Governments, established for what, 68.\n\n Gregory of Tours, 69.\n\n Guaranty of performance by another, 143.\n\n\n Heraclitus, 24.\n\n Hermogenianus, 36.\n\n Herodotus, 66, 68.\n\n Hesiod, 23, 24, 68.\n\n Hiring, 153.\n\n Homicide, excusable, 29.\n\n Hostages: Right to kill, 330, 364.\n Appendages to treaties, 400.\n\n\n Immunity of Ambassadors, 202.\n\n Incorporeal rights, 85, 309, 346.\n Of a state lost by conquest, 349.\n\n Indemnity: A justifiable cause for war, 75.\n\n Injunctions, 170.\n\n Injuries to property: Robbery, 81.\n Redress for, 311.\n Amounting to breach of peace, 397.\n\n Insurance, contract of, 156, 157.\n\n Interest, lawfulness of, 154, 156.\n\n Interpretation: Of laws, 136.\n Of promises, 137.\n Of treaties, 176 _et seq._\n Words, taken in common acceptation, 177.\n Words of art, 177, 181.\n Obscure words, 178.\n Probable consequences, 179.\n Context, 179.\n Motive, 180.\n Allies, construed, 183.\n Absurd conditions, 188.\n And law of nations, 194.\n Of peace, 389, 392, 401.\n Names of countries, 392.\n\n\n Josephus, 35, 50.\n\n Justifiable causes of war, 73, 75, 85, 247, 285.\n\n Justinian, 58.\n\n\n Kings, accountability of, 69.\n Not all made by the people, 67.\n\n\n Lactantius, 23, 74.\n\n Lakes, when property, 90.\n\n Lands: Three-fold division of, 106.\n When considered as taken possession of, in war, 336, 339.\n Postliminium rights of, 355.\n Waste, 90, 91.\n\n Law: Basis of, 136.\n Fecial, of Rome, 319.\n\n Lawful war, 18, 31, 278, 324.\n\n Law of Nations, 23.\n How proved, 25, 101.\n Voluntary, 158.\n And interpretation of treaties, 194.\n Use of term, 296.\n Positive, 297.\n Right to destroy property of enemy under, 332.\n Respecting captures in war, 334, 336, 338.\n\n Law of nature, 22, 79,\n Relation to civil law, 91.\n Civil customs not part of, 248.\n Ignorance of, excusable, 248.\n As to things captured in war, 334.\n\n Laws: Interpretation of, 136.\n Power to repeal, 238.\n\n Letters of marque and reprisal, 278, 311.\n\n Letting and hiring, 153.\n\n Lie, what is a, 299.\n\n Livy, 64, 73, 78, 114, 167, 170, 206, 317, 332.\n\n Losses of individuals in war, 388.\n\n Lot, as method of settling national disputes, 277.\n\n\n Marque and reprisal, letters of, 278, 311.\n\n Mediation, 84.\n\n Mediator, office of, 398.\n\n Money, variations in value, 153.\n\n Monopoly, 101, 152.\n\n Moral distinctions, as to acts, 274 _et seq._\n\n Mosaic Law, 26-28.\n Not binding upon Christians, 29.\n\n Mutius, Quintius, 36.\n\n\n Nations, law of, 23.\n Voluntary, 158.\n Union of, rights continue, 121.\n Restoration of conquered, 354, 355, 390.\n\n Natural Right, 21.\n\n Nature, law of, unalterable, 22.\n Proof of existence of, 24.\n\n Naval associations: Apportionment of losses, 158.\n\n Necessity, appropriation of property under, 92, 93.\n\n Negotiation of treaties, true basis for, 385.\n\n Neutral soil: Right of belligerent to, 93.\n Captures on, 344.\n Goods, 337.\n\n Neutrals, rights and duties, 377.\n\n\n Oaths: Sanctity of, 160 _et seq._\n Meaning of, 161.\n Validity and form of, 162.\n Effect and substance of, 163, 381.\n Authority of sovereign over, 164.\n\n Obligations: Arising from property, 123.\n Imperfect, 134.\n Resulting from injury, 195.\n Enforcing performance of, 287.\n Promises, 131, 135.\n\n Occupancy, title by, 90.\n\n Occupatory lands, 106.\n\n Offenses against society, punishment of, 258.\n\n Origen, 49.\n\n Ovid, 32.\n\n\n Pardons, lawfulness of, 236, 238.\n\n Parley, sign of, 416.\n\n Partnerships, 146.\n Trading--proportion of profits and losses, 157.\n\n Paulus, 21.\n\n Peace: The object of wars, 379.\n Treaties of, 385.\n Who may make, 386.\n Interpretation of, 389.\n Breach of, 393.\n Preservation of, 417.\n\n Penal statutes, construction of, 181.\n\n Penalties: Remitted, 391.\n Special, 396.\n Payment of, effect on wars, 408.\n\n Performance of contract, guaranty for, 143.\n\n Piracy, sovereign answerable for, 200.\n\n Pirates, treatment of, 380.\n\n Plato, 75, 93, 224, 226, 229.\n\n Pledges: Appendages to treaties, 400.\n Redemption of, 401.\n\n Pliny, 36, 254.\n\n Plutarch, 23, 24, 66, 93, 221, 226, 227, 235.\n\n Polybius, 23, 73, 208.\n\n Pomponius, 159.\n\n Ponds, when property, 90.\n\n Porphyry, 24.\n\n Possession: Uninterrupted, transfers property, 114.\n Of property, at conclusion of war, 390.\n Right of, 399.\n\n Posthumous rights to property, 114.\n\n Postliminium: Definition of, 169, 331.\n Right of, 314, 336, 351, 354, 390, 405.\n Horses, mules, and ships under law of, 352, 405.\n Deserters, 355, 390.\n Lands, 355.\n Movable property, 356.\n Things useful in war, 356.\n\n Premium of insurance, 156.\n\n Prescription, law of, as applied to a sovereign, 115.\n\n Price, governed by demand, 151.\n\n Prisoners: Surrender of, 258, 259.\n Killing of, 328, 363.\n As slaves, 345.\n Ransom of, 347, 410.\n Right of postliminium, 352, 390.\n Rights of, on release, 353.\n Right of making, 357.\n\n Privateers, 200.\n\n Private right, 20.\n\n Privileges of bodies politic, 262.\n\n Prizes: By right of war, 337, 343, 346.\n Taken from pirates, 357.\n\n Prohibitions in treaties, 193.\n\n Promises: Obligation of, 131, 135, 379, 381.\n Perfect, 135, 194.\n Interpretation of, 137.\n Obtained by fraud or fear, 137.\n Erroneous, 137, 142.\n Valid, 138.\n Of ambassadors, 139.\n Revocation of, 140.\n Acceptance of, 139, 141, 415.\n With conditions, 142.\n\n Property: Means of acquiring, 103.\n Obligations arising from possession of, 123 _et seq._\n Alienated by rights of war, 353, 389.\n Restoration of, taken in unjust war, 375.\n Possession of, for long time may not give right of, 109,--but\n see 114.\n Redress of injuries to, 311, 318.\n Of enemy, right to destroy, 332, 365, 366.\n Title to, 335, 90.\n Possession of, after war, 390.\n Appropriation of, on ground of necessity, 91, 92.\n Of subjects, liability of for debts of states, 308, 370, 387.\n Title to, as between enemies, 338.\n Use of, 94.\n Acquisition of, in war, 340.\n Captured, 369.\n Idea of how established, 89.\n When right of, ceases to exist, 117.\n Movable and immovable, 88, 356.\n Things not reducible to, 89.\n In lakes, ponds, and rivers, 90.\n Abandoned, 107, 111.\n\n Puffendorf, 193.\n\n Punishment: A justifiable cause of war, 75.\n Defined, 221.\n Who may inflict, 223, 226, 228.\n Object of, 224, 226, 229, 232, 240, 247, 370.\n Under the Gospel, 230.\n Capital, 233.\n Wicked acts not subject to, 235.\n Proportioned to offense, 243 _et seq._\n Of offenses against God, 249 _et seq._\n Communication of, upon accomplices, 256.\n Offenses affecting society, 258.\n Of non-participants, 262.\n Of surety, 264.\n Of children for parents' sins, 266.\n Classes exempt from, 362.\n Of hostages, 364.\n Right to claim property as, 391.\n\n\n Quintilian, 24, 89.\n\n\n Ratification of treaties and conventions, 167, 175, 414.\n\n Recovery of things alienated by rights of war, 353.\n\n Redemption of pledges, 401.\n\n Redress, method of obtaining, 311, 318.\n\n Religion, based on four truths, 250.\n\n Remedial statutes, construction of, 181.\n\n Reprisal: Letters of Marque and, 278.\n A method of obtaining redress, 311, 312, 327, 370.\n\n Residents, foreign, rights of, 97.\n\n Restoration: Of subjugated people, 354, 355.\n Of property, 375, 392.\n\n Right: To movables by occupancy, 104.\n To impose duties on goods in transit, 97.\n Common-passage through countries, 95, 97, 99.\n Of burial, 213.\n Violation of, 301.\n Of dominion, acquisition of, 379.\n Of governors and governed, 19.\n Of prisoners, 353.\n Definition and signification of, 18, 19, 20.\n To actions, 99.\n Private, 20.\n Superior, 20.\n Of asylum, 260.\n Voluntary, 25.\n Of making war, 386.\n Of possession, 399.\n\n Rights: Human and Divine, 25.\n Sources of, 195.\n Disputed, methods of settling, 276.\n Of property, 307.\n Of persons, 19, 307, 391.\n Resulting from conquest, 348.\n Arising out of law of nations, 219.\n Real, 19.\n Of war, 18, 332, 336, 381.\n Corporeal and incorporeal, 85, 309, 346.\n Of temporary residents, 98.\n Of native, 92.\n\n River: Effect of change in course of, 106.\n Middle of boundary between territories, 107.\n When property, 90, 104.\n\n Robbery, right to kill robber, 81.\n\n Romanus, Clemens, 52.\n\n\n Sacred things not exempt from destruction by enemy, 332.\n\n Safe conduct, a, 408.\n Expiration of, 409.\n\n Sales and purchases: Right of restricting, 100.\n When contract complete, 151.\n\n Sallust, 206.\n\n Salvian, 51.\n\n Sea: Open, not property, 90.\n Portions of, may become property, 104.\n\n Self-defense, 77.\n\n Seneca, 19, 24, 74, 75, 80, 92, 108, 118, 135, 192.\n\n Services, gratuitous, 144.\n\n Settlement of national disputes, methods of, 276.\n\n Ships. Owners bound by acts of masters of, when, 139.\n Goods found in enemy's, 337.\n Under law of postliminium, 352.\n\n Silanian, Decree, 53.\n\n Slavery, 345.\n\n Slaves: Prisoners of war, 345.\n Right of postliminium, 352.\n\n Smith, Adam, 101 _n_.\n\n Soldiers, compensation to, 341, 343.\n\n Sovereign power: Not in the people in every case, 63 _et seq._, 120.\n Ceases, when, 117.\n To declare war, 316, 386.\n\n Sovereigns: Elective and hereditary, 71.\n Responsibility for piracy and robbery, 200.\n For acts of subjects, 257.\n Bound by acts of commissioner, 412.\n\n Sovereignty: Its nature and where it resides, 60, 62, 70, 71, 103.\n Not forfeitable by act of delinquency, 80.\n\n Spies, treatment of, when captured, 331.\n\n Sponsio, 167.\n\n State: Definition of, 25.\n Sovereign, 62.\n Conquered, privileges allowed to, 374.\n Division of, into constituent parts, by consent of war, 121.\n\n States: When immortal, 117.\n May lose political existence by conquest, 348, 349.\n\n States General: Three divisions of, 70, 71.\n Power of, 71.\n Of Holland, 337.\n\n Statutes: Penal construed strictly; remedial liberally, 181.\n\n Strabo, 62, 98.\n\n Stratagem, use of, in war, 294 _et seq._\n\n Subjects: Of sovereign, detention of, 311.\n Liability to attack, in time of war, anywhere, 327.\n\n Superior right, 20.\n\n Supply of a thing affects its price, 151.\n\n Surety: Punishment of, 264.\n Bound by consent, 308.\n\n Surrender: Of a people, in war, 390.\n Conditional, 400.\n\n Sylla, Lucius Cornelius, 57.\n\n\n Tacitus, 64, 68, 87, 106, 110, 213.\n\n Taxes on goods in transit, 97.\n\n Terminus, rites of, 373.\n\n Territory long possessed, title to, 110.\n\n Tertullian, 49, 51, 52.\n\n Thucydides, 60, 174.\n\n Time: As an element of right of property, 109.\n Immemorial, 113.\n\n Transit, goods in, 97.\n\n Treaties: Public and private, 166.\n Equal, 170.\n Unequal, 158, 170, 171, 184.\n Definition of, 167.\n Requiring ratification, 167.\n Power to make in monarchies, 168.\n Resting in law of nature, 168.\n Of commerce and amity, 169, 170, 185.\n Of peace, 170, 386, 389, 391.\n Renewal of, 173.\n Effect of violation of, 174.\n Interpretation of, 176 _et seq._ (See Interpretation of Treaties.)\n Personal and real, 184.\n Where governments change form, 184, 185.\n Of peace, material part of, 386.\n Stipulations as to actions at law, 390.\n Hostages and pledges under, 400.\n\n Truces: Definition, 403.\n Duration of, 404.\n Public notice of, 405.\n Breach of, 406,\n Granting of, 414\n\n\n Ulpian, 21, 34, 36, 129, 162, 166, 263, 333.\n\n Unlawful acts, 305.\n\n Usucaption, law of, as applied to sovereigns, 115.\n\n Usufruct, 155.\n\n Usufructuary property, 86.\n\n Usury, 155.\n\n\n Valentinian, 67.\n\n Value of a thing governed by what? 150.\n Of money, 153.\n\n Vasquez, 80, 239, 286, 388.\n\n Vattel, 101, 158, 167, 169, 177, 203, 297, 387, 388--_notes_.\n\n\n War: Definition of, 18, 403.\n Derivation of word, 18.\n Division of, public, private, and mixed, 55.\n All, not repugnant to law of nature, 34, 36.\n Private, 55, 56, 83.\n Justifiable causes, pretexts, and beginning of, 73, 75, 247, 285.\n Defense, indemnity and punishment, 75, 245.\n Time of beginning, 284.\n Object of, 379.\n Effect upon debts, 391.\n Lawfulness of, 18, 31, 278, 324.\n Under divine voluntary law, 36, 40.\n Aid to parties to, 173.\n Causes, justifying participation of allies, 285.\n Lawful means used in, 290, 363.\n Use of stratagem, 294.\n Suspicion of hostile intentions, 83.\n Injury to property, 85.\n Demand of surrender of citizen, 285.\n Precautions against, 280 _et seq._\n Right of belligerents to neutral soil, 93.\n Unjust, causes of, 267 _et seq._\n Avoidance of, 280 _et seq._, 418.\n Declaration of, 318, 321, 404, and forms, 319.\n Right to make, 386.\n Losses of individuals by, 388.\n Public, formal and informal, declared by sovereign, 57, 316, 317,\n 386.\n Right to avert, and to punish wrongs, 83, 200, 247, 280.\n\n \"Wealth of Nations,\" 101 _n_.\n\n Withernam, 311.\n\n Wrongs: Division of, private and public, 61.\n Sovereign power may avert and punish, 83.\n\n\n Xenophon, 32, 93.\n\n\n\n\nFOOTNOTES:\n\n\n[1] The eighth Section is omitted, the greater part of it consisting\nof verbal criticism upon Aristotle's notions of geometrical and\narithmetical justice; a discussion no way conducive to that clearness\nand simplicity, so necessary to every didactic treatise.--TRANSLATOR.\n\n[2] The law, by its silence, permits those acts, which it does not\nprohibit. Thus many acts, if they are not evil in themselves, are no\noffence, till the law has made them such. Of this kind are many acts,\nsuch as exporting gold, or importing certain articles of trade; doing\ncertain actions, or following certain callings, without the requisite\nqualifications, which are made punishable offences by the Statute-Law.\nThose actions, before the prohibition was enjoined by the law, came\nunder the class of what Grotius calls permissions.\n\n[3] By moral necessity is meant nothing more than that the Laws of\nNature must always bind us.\n\n[4] To explain the meaning of Grotius in this place, recourse must\nbe had to first principles. Thus the law of nature authorizing\nself-defence in its fullest extent, the laws of nations, which\nauthorize war for the same purpose, cannot be repugnant to it.\n\n[5] The Law of England on homicide excusable by self-defence, will\nthrow light on the sentiments of Grotius in this place. \"The law\nrequires, that the person who kills another in his own defence, should\nhave retreated as far as he conveniently or safely can, to avoid the\nviolence of the assault, before he turns upon his assailant; and that,\nnot fictitiously, or in order to watch his opportunity, but from a\nreal tenderness of shedding his brother's blood. And though it may be\ncowardice, in time of war, between two independent nations, to flee\nfrom our enemy; yet between two fellow subjects the law countenances no\nsuch point of honour; because the king and his courts are the _vindices\ninjuriarum_, and will give to the party wronged all the satisfaction he\ndeserves. And this is the doctrine of universal justice, as well as of\nthe municipal law.\"--Blackstone's Com. vol. 4, chap. 14.\n\n[6] The author here alludes to the defilement or uncleanness which\nthe ancients thought was contracted by touching a man, who had killed\nanother, even innocently and lawfully.--Barbeyrac.\n\n[7] The remainder of this section is omitted, Grotius himself stating\nit to be only a repetition and enlargement of his arguments immediately\npreceding it. (Translator.)\n\n[8] Grotius does not vouch for the truth of this assertion, but only\nquotes the passage to shew there were CHRISTIANS in the army of Marcus\nAurelius.\n\n[9] By the Silanian decree of the Senate, it was ordered that if a\nmaster happened to be murdered in his own house, all the slaves under\nthe same roof should be put to death; even though no proof appeared of\ntheir being concerned in the murder. We have an example of the case\nin Tacitus. Annal. v. xiv. ch. xlii. The Emperor Adrian softened the\nrigour of that decree, by ordering that only they should be exposed to\nthe rack, who were near enough to have heard some noise. Spartian, Life\nof Adrian, ch. xviii.\n\n[10] As Grotius has so fully established his argument, it is\nunnecessary to review his answer to further objections.--(TRANSLATOR.)\n\n[11] As the topics of the third section have been so fully stated in\nthe second chapter, that section has been omitted, and the translation\ngoes on from the second of the original to the fourth. (Translator.)\n\n[12] In case of rebellion, the subjects taken in arms, have no right\nto be treated as prisoners of war, but are liable to punishment as\ncriminals.\n\n[13] \"Wrongs are divisible into two sorts or species, PRIVATE WRONGS,\nand PUBLIC WRONGS. The former are an infringement or privation of\nthe private or civil rights belonging to individuals, considered as\nindividuals, and are therefore frequently termed civil injuries;\nthe latter are a breach and violation of public rights and duties\nwhich affect the whole community considered as a community,\nand are distinguished by the harsher appellation of crimes and\nmisdemeanors.\"--Blackst. Com. b. iii. c. i.\n\n[14] The translation proceeds from hence to the second book of the\noriginal, which seems to follow this part without any material break in\nthe chain of argument: the intermediate sections relating to instances\nin the Roman Republic, which do not directly apply to the practice of\nmodern governments.--TRANSLATOR.\n\n[15] The tenth section is omitted in the translation; as the subject of\nChristian forbearance of which it treats, has already been discussed in\nthe preceeding book.--TRANSLATOR.\n\n[16] Sections XIII. XIV. and XV. of the original are omitted in the\ntranslation.--TRANSLATOR.\n\n[17] _Actus aliquos_, which literally signifies certain acts, may be\nrendered by the term incorporeal rights, which imply the right of ways,\ndignities, franchises, and many other personal privileges arising out\nof certain corporeal kinds of property.\n\n[18] The words of Judge Blackstone will elucidate the meaning of\nGrotius in this place. The learned Commentator says, \"There are some\nfew things, which, notwithstanding the general introduction and\ncontinuance of property, must still unavoidably remain in common; being\nsuch wherein nothing but an usufructuary property is capable of being\nhad: and therefore they still belong to the first occupant, during the\ntime he holds possession of them, and no longer. Such (among others)\nare the elements of light, air, and water; which a man may occupy by\nmeans of his windows, his gardens, his mills, and other conveniences:\nsuch also are the generality of those animals which are said to be\n_ferae naturae_, or of a wild and untameable disposition: which any man\nmay seise upon and keep for his own use or pleasure. All these things,\nso long as they remain in possession, every man has a right to enjoy\nwithout disturbance; but if once they escape from his custody, or he\nvoluntarily abandons the use of them, they return to the common stock,\nand any man else has a right to seise and enjoy them afterwards.\"\n\n[19] The meaning of Grotius in this Section will be more clearly\nunderstood by a brief explanation of the nature of Contracts. \"Now\ncontracts are of two kinds, either express or implied. Express\ncontracts are openly uttered and avowed at the time of making, as to\ndeliver an ox, or ten load of timber, or to pay a stated price for\ncertain goods. Implied are such as reason and justice dictate, and\nwhich therefore the law presumes, that every man undertakes to perform.\nAs, if I employ a person to do any business for me, or perform any\nwork; the law implies that I undertook, or contracted, to pay him\nas much as his labor deserves. If I take up wares from a tradesman,\nwithout any agreement of price, the law concludes, that I contracted\nto pay their real value. And there is also one species of implied\ncontracts, which runs through and is annexed to all other contracts,\nconditions, and covenants, viz. that if I fail in my part of the\nagreement, I shall pay the other party such damages as he has sustained\nby such my neglect or refusal.\" Blackst. Com. b. ii. c. 30. p. 442.\n\n[20] There are cases in which monopolies, and the exclusive privileges\nof trading companies are not only allowable but absolutely necessary.\n\"For there are, _says Vattel_, commercial enterprizes that cannot be\ncarried on without an energy that requires considerable funds, which\nsurpass the ability of individuals. There are others that would soon\nbecome ruinous, were they not conducted with great prudence, with one\nregular spirit, and according to well supported maxims and rules. These\nbranches of trade cannot be indiscriminately carried on by individuals:\ncompanies are therefore formed, under the authority of the government;\nand these companies cannot subsist without an exclusive privilege.\nIt is therefore advantageous to the nation to grant them: hence have\narisen in different countries, those powerful companies that carry on\ncommerce with the East.\"--Law of Nat. b. i. c. viii. sect. 97. p. 42.\n\n[21] Adam Smith in his Wealth of Nations, speaking of treaties of\ncommerce, observes, that \"when a nation binds itself by treaty, either\nto permit the entry of certain goods from one foreign country which it\nprohibits from all others, or to exempt the goods of one country from\nduties to which it subjects those of all others, the country, or at\nleast the merchants and manufacturers of the country, whose commerce\nis so favoured, must necessarily derive great advantages from the\ntreaty. Those merchants and manufacturers enjoy a sort of monopoly in\nthe country, which is so indulgent to them. That country becomes a\nmarket both more extensive and more advantageous for their goods: more\nextensive, because the goods of other nations being either excluded or\nsubjected to heavier duties, it takes off a great quantity of theirs:\nmore advantageous, because the merchants of the favoured country,\nenjoying a sort of monopoly there, will often sell their goods for a\nbetter price, than if exposed to the free competition of all other\nnations.\"--Vol. 2. b. iv. ch. vi.\n\n[22] The translation proceeds from the fourth to the ninth Chapter\nof the Second book of the original. The intermediate chapters, being\nchiefly a repetition of the author's former arguments, respecting the\nrights of seas and rivers, and other kinds of dominions; and that\nrelating to the rights of persons, being so fully treated in the first\nvolume of Judge Blackstone's Commentaries, it seemed unnecessary to\ngive them in the present work.--TRANSLATOR.\n\n[23] Section VII of the original is omitted in the\ntranslation.--TRANSLATOR.\n\n[24] The following extracts from Blackstone's Com. b. ii. ch. xxx.\nwill elucidate the meaning of our author in this place. \"Sale or\nEXCHANGE is a transmutation of property from one man to another, in\nconsideration of some price or recompense; for there is no sale without\na recompence.\" P. 446.\n\n\"Where the vendor HATH in himself the property of the goods sold, he\nhath the liberty of disposing of them to whom ever he pleases, at any\ntime, and in any manner.\" Ibid. 446.\n\n\"And notwithstanding any number of intervening sales, if the original\nvendor, who sold without having the property, comes again into\npossession of the goods, the original owner may take them, when found\nin his hands who was guilty of the first breach of justice.\" Ibid. p.\n450.\n\n[25] \"A promise is in the nature of a verbal covenant, and wants\nnothing but the solemnity of writing and sealing to make it absolutely\nthe same. If therefore it be to do any explicit act, it is an express\ncontract, as much as any covenant; and the breach of it is an equal\ninjury.\"--Blackst. Com. b. iii. ch. ix. sect. 3.\n\n[26] All the reasonings of Grotius, on this, and on every other point,\nare intended to apply not only to the transactions of individuals, but\nto the conduct and affairs of nations.\n\n[27] \"The most universal and effectual way of discovering the true\nmeaning of a law, when the words are dubious, is by considering the\nREASON and SPIRIT of it, or the cause which moved the legislator to\nenact it. For when the reason ceases, the law itself ought likewise to\ncease with it.\"--Blackst. Introd. Com. ch. 2. p. 16.\n\n[28] Sections X. and XI. of the original are omitted in the\ntranslation.--TRANSLATOR.\n\n[29] From this simple origin of barter, and exchange of things have\narisen all the various transactions of commerce. And what was at first\nan act of necessity between individuals, has proved an inexhaustible\nsource of wealth and prosperity to nations.\n\n[30] For the necessity of Monopolies in certain cases, see the note on\nthe xxi. sect. of the 2nd. chapter of this book.\n\n[31] The Dutch in order to secure to themselves the monopoly of the\nspice-trade have frequently destroyed all the productions of the spice\nislands beyond what was necessary for their own supply. By the just\npolicy of the laws of England, \"combinations among victuallers or\nartificers, to raise the price of provisions, or any commodities, or\nthe rate of labour, are in many cases severely punished by particular\nstatutes; and, in general, by statute 2 and 3 Edwd. VI. c. 15, with the\nforfeiture of 10 l., or twenty days imprisonment with an allowance of\nonly bread and water, for the first offence; 20 l. or the pillory for\nthe second; and 40 l. for the third, or else the pillory, loss of one\near, and perpetual infamy. In the same manner, by a constitution of\nthe Emperor Zeno, all monopolies and combinations to keep up the price\nof merchandise, provisions, or workmanship, were prohibited, upon pain\nof forfeiture of goods and perpetual banishment.\"--Blackst. Com. b.\niv. c. 12. p. 159.--Also the 39 Geo. III. c. 81, enacted, that every\nperson combining with others to advance their wages, or decrease the\nquantity of work, or any way to affect or controul those who carried\non any manufacture or trade in the conduct and management thereof,\nmight be convicted before one justice of the peace, and might be\ncommitted to the common gaol for any time not exceeding three calendar\nmonths, or be kept to hard labour in the house of correction for two\nmonths.--Christian's notes to Blackstone on the same place.\n\n[32] \"It is possible that an estate or a house may, during the term\nof a lease, be so increased or diminished in its value, as to become\nworth much more, or much less, than the rent agreed to be paid for it.\nIn some of which cases it may be doubted, to whom, of natural right,\nthe advantage or disadvantage belongs. The rule of justice seems to be\nthis: If the alteration might be EXPECTED by the parties, the hirer\nmust take the consequence; if it could not, the owner. An orchard, or\na vineyard, or a mine, or a fishery, or a decoy, may this year yield\nnothing or next to nothing, yet the tenant shall pay his rent; and\nif they next year produce tenfold the usual profit, no more shall be\ndemanded; because the produce is in its nature precarious, and this\nvariation might be expected.\"--Paley's, Mor. Phil. vol. 1. p. 155, 156.\n\n[33] The following passage from Judge Blackstone will both elucidate\nthe meaning and support the reasoning of our author. \"Though money\nwas originally used only for the purposes of exchange, yet the laws\nof any state may be well justified in permitting it to be turned to\nthe purposes of profit, if the convenience of society (the great end\nfor which money was invented) shall require it. And that the allowance\nof moderate interest tends greatly to the benefit of the public,\nespecially in a trading country, will appear from that generally\nacknowledged principle, that commerce cannot subsist without mutual and\nextensive credit. Unless money therefore can be borrowed, trade cannot\nbe carried on: and if no premium were allowed for the hire of money,\nfew persons would care to lend it; or at least the ease of borrowing at\nshort warning (which is the life of commerce) would be entirely at an\nend.\"--B. ii. ch. 30. p. 454, 455.\n\n[34] \"The Mosaic law indeed prohibited the lending of money upon\nusury. But this was a political and not a moral precept. It only\nprohibited the Jews from taking usury of their brethren the Jews, but\nin express words permitted them to take it of a stranger: which proves\nthat the taking of moderate usury, or a reward for the use, is not an\nevil in itself, since it was allowed where any but an Israelite was\nconcerned.\"--Blackst. Com. b. ii. ch. 30. p. 454. The objections made\nto it by Cicero and others, our author observes, are founded more upon\nthe consequences of usury than upon usury itself. Because it deters\nmen from borrowing. But, on the other hand, if there were no advantage\nattached to the lending of money, none would be found willing to lend;\nconsequently the benefits arising from a facility of borrowing money to\ncarry on trade would be defeated.\n\n[35] \"Insurances being contracts, the very essence of which consists in\nobserving the purest good faith and integrity, they are vacated by any\nthe least shadow of fraud or undue concealment; and, on the other hand,\nbeing much for the benefit and extension of trade, by distributing the\nloss or gain among a number of adventurers, they are greatly encouraged\nand protected both by common law and acts of parliament.\"--Blackst.\nCom. b. ii. ch. 30. p. 460.\n\n\"The contract of insurance is founded upon the purest principles\nof morality and abstract justice. Hence it is necessary that the\ncontracting parties should have perfectly equal knowledge or ignorance\nof every material circumstance respecting the thing insured. If on\neither side there is any misrepresentation or _allegatio falsi_, or\nconcealment, or _suppressio veri_, which would in any degree affect the\npremium, or the terms of the engagement, the contract is fraudulent and\nabsolutely void.\"--Christian's note on the same passage.\n\n[36] There is a distinction to be observed between the NECESSARY, and\nthe VOLUNTARY law of nations. Vattel defines the NECESSARY law to\nbe \"that which is always obligatory on the conscience, and of which\na nation ought never to lose sight in the line of conduct she is to\npursue in order to fulfil her duty, but when there is a question of\nexamining what she may demand of other states, she must consult the\nVOLUNTARY law, whose maxims are devoted to the safety and advantage of\nthe universal society of mankind.\"--Prelim. sect. 28.\n\n[37] The writer quoted in the preceding note defines that obligation\n\"to be INTERNAL, which binds the conscience, and is deduced from the\nrules of duty; and that to be EXTERNAL, which is considered relatively\nto other men, and produces some right between them.\"--Ibid. sect. 17.\n\n[38] A treaty may be more advantageous to one of the contracting\nparties than to the other, and yet contain nothing unjust. \"Frequently\na great monarch, wishing to engage a weaker state in his interest,\noffers her advantageous conditions, promises her gratuitous succours,\nor greater than he stipulates for himself; but at the same time he\nclaims a superiority of dignity, and requires respect from his ally.\nIt is this last particular which renders THE ALLIANCE UNEQUAL: and to\nthis circumstance we must attentively advert; for with alliances of\nthis nature we are not to confound those in which the parties treat\non a footing of equality, though the more powerful of the allies,\nfor particular reasons, gives more than he receives, promises his\nassistance gratis, without requiring gratuitous assistance in his\nturn, or promises more considerable succours or even the assistance\nof all his forces: here the alliance is equal, but the treaty is\nunequal, unless indeed we may be allowed to say, that, as the party\nwho makes the greater concessions has a greater interest in concluding\nthe treaty, this consideration restores the equality. Thus, at a\ntime when France found herself embarrassed in a momentous war with\nthe house of Austria, and the cardinal de Richelieu wished to humble\nthat formidable power, he, like an able minister, concluded a treaty\nwith Gustavus Adolphus, in which all the advantage appeared to be on\nthe side of Sweden. From a bare consideration of the stipulations of\nthat treaty, it would have been pronounced an unequal one; but the\nadvantages which France derived from it, amply compensated for that\ninequality.\"--Vattel, b. ii. ch. 12. sect. 175. p. 200, 201.\n\n[39] The nature of oaths, contracts and promises having been so fully\ndiscussed in the preceding chapters, the translation proceeds from the\nthirteenth to the fifteenth chapter of the original, the fourteenth\nbeing in a great measure only a repetition of our author's former\narguments upon the subject.--TRANSLATOR.\n\n[40] On this subject the opinions of our author, and those of Vattel\nwill reflect light upon each other. From the latter of whom, the\nfollowing extracts will place the matter in a clear point of view. \"If\na public person, an ambassador, or a general of an army, exceeding\nthe bounds of his commission, concludes a treaty or a convention\nwithout orders from the sovereign or without being authorised to do\nit by virtue of his office, the treaty is null, as being made without\nsufficient powers: it cannot become valid without the express or tacit\nratification of the sovereign. The express ratification is a written\ndeed by which the sovereign approves the treaty, and engages to\nobserve it. The tacit ratification is implied by certain steps which\nthe sovereign is justly presumed to take only in pursuance of the\ntreaty, and which he could not be supposed to take without considering\nit as concluded and agreed upon. Thus, on a treaty of peace being\nsigned by public ministers who have even exceeded the orders of their\nsovereigns, if one of the sovereigns causes troops to pass on the\nfooting of friends through the territories of his reconciled enemy, he\ntacitly ratifies the treaty of peace. But if, by a reservatory clause\nof the treaty, the ratification of the sovereign be required--as such\nreservation is usually understood to imply an express ratification,\nit is absolutely requisite that the treaty be thus expressly ratified\nbefore it can acquire its full force. By the Latin term _sponsio_, we\nexpress an agreement relating to affairs of state, made by a public\nperson, who exceeds the bounds of his commission, and acts without the\norders or command of the sovereign. The person who treats for the state\nin this manner without being commissioned for the purpose, promises of\ncourse to use his endeavours for prevailing on the state or sovereign\nto ratify the articles he has agreed to: otherwise his engagements\nwould be nugatory and illusive. The foundation of this agreement can be\nno other, on either side, than the hope of such ratification.\"--Vattel,\nb. ii. ch. xiv. sect. 208, 209, p. 219. \"The general of an army, _he\nproceeds_, has indeed by virtue of his commission, a power to enter,\nas circumstances may require, into a private convention,--a compact\nrelative to himself, to his troops, or to the occurrences of war: but\nhe has no power to conclude a treaty of peace. He may bind himself,\nand the troops under his command, on all occasions where his functions\nrequire that he should have the power of treating; but he cannot bind\nthe state beyond the extent of his commission.\"--Ibid. sect. 210. p.\n220.\n\n[41] \"The right of postliminium is that, in virtue of which, persons\nand things taken by the enemy are restored to their former state, on\ncoming again into the power of the nation to which they belonged.\"\nVattel, b. iii. ch. xiv. sect. 204.\n\n[42] \"Personal creditors are in the Roman law called Chirographarii,\nbecause they commonly have some bond or note of hand for the debt.\nAnd where there are several such creditors, if the debtor's estate is\nnot sufficient to satisfy them all, each has his share assigned in\nproportion to the largeness of the debt, without any regard to the\ntime, when it was contracted. But in mortgages it was different, the\ndebt of longest standing was to be first satisfied.\"--Barbeyrac.\n\n[43] When the Roman army had passed under the yoke at Caudium, upon\ntheir return, when the matter was referred to the senate, it was said\nthat as the convention was made without the consent of the senate or\npeople, the Roman people were not bound by it, and a proposal was made\nthat those who had signed the treaty should again be given up to the\nenemy, thus the people would be released from the engagement. This\nproposal was agreed to, and a decree to that purpose passed.\n\n[44] Luctatius had inserted this clause that the agreement should be\ngood and valid, only in case it was approved by the Roman people.--Liv.\nlib. xxi. c. xix. See likewise Polybius, lib. iii. c. xxi.\n\n[45] \"In all human affairs, where absolute certainty is not at hand\nto point out the way, we must take probability for our guide. In\nmost cases it is extremely probable that the parties have expressed\nthemselves conformably to the established usage: and such probability\never affords a strong presumption, which cannot be overruled but by\na still stronger presumption to the contrary. Camden, in his history\nof Queen Elizabeth, gives us a treaty, in which it is expressly said\nthat the treaty shall be precisely understood according to the force\nand appropriate signification of the terms.\"--Vattel, b. ii. ch. xvii.\nsect. 271. On the same subject, Judge Blackstone says, that \"words are\ngenerally to be understood in their usual and most known signification;\nnot so much regarding the propriety of grammar, as their general and\npopular use.\"--Introduct. to Com. ch. ii. p. 59.\n\n[46] \"The word DAY is understood of the NATURAL DAY, or of the time\nduring which the sun affords us his light, and of the CIVIL DAY, or\nthe space of twenty-four hours. When it is used in a convention to\npoint out a space of time, the subject itself manifestly shews that the\nparties mean the civil day, or the term of twenty-four hours.\"--Vattel,\nb. ii. ch. xvii. sect. 280.\n\n[47] \"It is a fundamental rule of construction, that penal statutes\nshall be construed strictly, and remedial statutes shall be construed\nliberally. It was one of the laws of the twelve tables of Rome,\nthat whenever there was a question between liberty and slavery, the\npresumption should be on the side of liberty. This excellent principle\nour law has adopted in the construction of penal statutes: for\nwhenever any ambiguity arises in a statute introducing a new penalty\nor punishment, the decision shall be on the side of lenity and mercy;\nor in favour of natural right and liberty: or, in other words, the\ndecision shall be according to the strict letter in favour of the\nsubject. And though the judges in such cases may frequently raise and\nsolve difficulties contrary to the intention or the legislature, yet no\nfurther inconvenience can result, than that the law remains as it was\nbefore the statute, and it is more consonant to principles of liberty,\nthat the judge should acquit whom the legislator intended to punish,\nthan that he should punish whom the legislator intended to discharge\nwith impunity. But remedial statutes must be construed according to\nthe spirit: for in giving relief against fraud, or in the furtherance\nand extension of natural right and justice, the judge may safely go\neven beyond that which existed in the minds of those who framed the\nlaw.\"--Christian's Notes on Blackst. Comm. Introd. p. 87.\n\n[48] The case of a promise made on the supposition of a posthumous\nchild's dying, instanced by our author in this place, bears so near a\nresemblance to that of a father's bequeathing his property to another,\nbelieving his son to be dead, that it is omitted in this chapter having\nbeen already given under the head of erroneous promises in the xi.\nchapter and 6th section of this book.--(Translator.)\n\n[49] \"The variety of human transactions cannot be comprised within\ngeneral rules. Occasional decrees therefore become requisite; which\nvary with each variation of circumstances, for the measure of what is\nindefinite must be indefinite itself, like the leaden ruler in the\nLesbian architecture, which changes its own shape according to that\nof the stones to which it is applied. It is manifest, therefore, that\nequity is a species of justice, and contrasted with another species\nto which it is preferable. A man of equity is he who deliberately and\nhabitually exercises this virtue; who prefers it in all his dealings\nto the rigour of justice; and who, even when the law is on his side,\nwill not avail himself of this advantage to treat others injuriously or\nunhandsomely.\"--Aristot. Eth. b. v. ch. x.\n\n[50] Owing to circumstances there may be a variation in the conduct,\nand yet no change in the principles of a state. This must frequently\nhappen in the commercial regulations between different countries, who\nare obliged to vary their means to secure the unity of their end. Or\nif in a treaty between two nations, it is declared there shall be\nPERPETUAL amity, and a subsequent declaration of war by one of the\nparties pronounces such amicable relations to be at an end, here there\nis no variation in PRINCIPLE but in CIRCUMSTANCES, which render such a\ndissolution of the amity, that was originally intended to be perpetual,\nnecessary to the welfare and preservation of that power, the sole\nobject of all treaties.\n\n[51] To illustrate the nature of GENERAL AND PARTICULAR cases, the\nfollowing example is taken from the Puffendorf:--\"One law forbids us to\nappear in public with arms on holidays: another law commands us to turn\nout under arms and repair to our posts, as soon as we hear the sound of\nthe alarm bell. The alarm is rung on a holiday. In such case we must\nobey the latter of the two laws, which creates an exception to the\nformer.\"--Jur. Gent, lib. v. c. xii. sect. 23.\n\n[52] \"The deputies sent to the assembly of the states of a kingdom,\nor a commonwealth are not public ministers like ambassadors, as they\nare not sent to foreign powers; but they are public persons, and, in\nthat respect, are possessed of every exemption and immunity, that\nare necessary to the discharge of their functions.\"--Vatt. b. iv.\nch. vii. sect. 109. Of this nature are the privileges enjoyed by the\nrepresentatives of the British people, and denominated the PRIVILEGES\nOF PARLIAMENT.\n\n[53] Nothing forms a more striking contrast between ancient and modern\nwar, then the personal animosities, which seemed to operate upon\nthe combatants in the former, and the public and national objects,\nWITHOUT ANY PERSONAL CONCERN, upon which the latter are undertaken.\nPeruse any ancient historian, or the battles in Homer and Virgil,\nWHICH THOUGH FICTIONS, DESCRIBE THE MANNERS OF THE AGE, and you see\ncombatants engaged, on whom the laws of nature and of nations seem to\nhave lost their force. Read the accounts of modern warfare and you\nfind hostilities commenced, not from private animosity, but from some\ngreat and national object, in the prosecution of which the feelings of\nthe individuals appointed to conduct them are not the only springs of\naction.\n\n[54] Sections XVI and XVII of the original, relating only to\nthe refutation of certain abstruse opinions, are omitted in the\ntranslation.--(Translator.)\n\n[55] Section V of the original is omitted in the\ntranslation.--TRANSLATOR.\n\n[56] Thus letters of marque and reprisal, by which individuals are\nenabled to redress their own wrongs, must issue from the sovereign\npower, otherwise the hostilities of such individuals would be unlawful.\nSo that here the ACTION would be unlawful, that is unjust, unless\nperformed by an AGENT, who had a commission from public authority.\n\n[57] The three rules above laid down by our author may be illustrated\nby the three following propositions.--\n\nIn the first place, it cannot be denied, that war, in the ABSTRACT, is\nan evil, but then it is necessary to consider, whether it is not an\nevil that must, in many cases, be submitted to in order to avoid still\ngreater calamities.\n\nSecondly, in the prosecution of a war, where the advantages, or evils\nare doubtful, it is necessary to endeavour after the attainment of\nnew confederacies or alliances, that may compensate for the losses\nsustained, or may open out new channels of trade and commerce, which\nmay supply the place of those that have been closed by the immediate\nwar.\n\nAs an illustration of the third point, we may adduce the conduct of\nKing William, after the British Cabinet that met at Tunbridge Wells,\nAugust 28, 1698, represented to him how inadequate the spirit of the\nnation was to enter into a new war, and to bear additional burdens,\nconcluding, \"this is the truth of the fact upon which your Majesty will\ndetermine what resolution ought to be taken.\" His Majesty did determine\nupon war, as the least of all the evils which faced his people,\nnotwithstanding the APPARENT inadequacy of his means. And \"in that\ngreat war, _says Mr. Burke_, carried on against Louis the XIV, for near\neighteen years, government spared no pains to satisfy the nation, that\nthough they were to be animated by a desire of glory, glory was not\ntheir ultimate object: but that every thing dear to them, in religion,\nin law, in liberty, every thing, which as freemen, as Englishmen, and\nas citizens of the great commonwealth of Christendom, they had at\nheart, was then at stake.\"--Lett. on Regic Peace, p. 90.\n\n[58] Thus when a ship makes an appearance of mounting more guns than\nshe really carries, in order to deter an enemy from attacking her, this\nmay be considered as one of those negative stratagems, or stratagems of\ndissimulation, to which our author alludes.\n\n[59] Besides the NECESSARY law of nations, which is EQUALLY, and at\nALL TIMES binding upon ALL states, there is a POSITIVE law of nations,\nconsisting of THE VOLUNTARY, THE CONVENTIONAL and THE CUSTOMARY law.\nAll of which \"proceed from the will of nations,--the VOLUNTARY from\ntheir presumed consent, the CONVENTIONAL from an express consent, and\nthe CUSTOMARY from tacit consent: and as there can be no other mode of\ndeducing any law from the will of nations, there are only these three\nkinds of POSITIVE LAW OF NATIONS.\"--Vattel, Prelim. Sect. 27.\n\n[60] See b. ii. ch. xxi. sect. 2. of this treatise.\n\n[61] See b. ii. ch. xxiii. sect. 7. _ibid._\n\n[62] But such captures cannot be made without authority from the\nsovereign.\n\n[63] The translation proceeds from the XV. to the XXIII. Section of the\noriginal, the intermediate Sections being only a confirmation of the\npreceding arguments by examples from ancient history.--TRANSLATOR.\n\n[64] Our author here speaks of things taken in battle. For upon the\nsurrender of towns, in almost all articles of capitulation it is\nstipulated, that the General and other superior officers, and the\nofficers of regiments shall preserve their swords and their private\nbaggage, and the noncommissioned officers and soldiers shall preserve\ntheir knapsacks.\n\n[65] \"The end of such a law is to animate soldiers and privateers to\npursue robbers and pirates, by the hopes of possessing things taken\neven from the subjects of the state.\"--Barbeyrac.\n\n[66] The tenth Chapter chiefly containing remarks that have been\ninterspersed in other parts of the work, is omitted here.--TRANSLATOR.\n\n[67] See b. ii. chap. ii. sect. 9.\n\n[68] See b. iii. ch. ii. of this work.\n\n[69] The translation proceeds from the XIII. to the XV. Chapter of the\noriginal.--TRANSLATOR.\n\n[70] B. ii. ch. xv. sect. 7.\n\n[71] \"The difficulty of recognising things of this nature, and the\nendless disputes, which would arise from the prosecution of the owner's\nclaims to them, have been deemed motives of sufficient weight for the\nestablishment of a contrary practice. It is therefore with reason,\nthat moveables or booty are excepted from the right of postliminium,\nunless retaken from the enemy immediately after his capture of them; in\nwhich case the proprietor neither finds a difficulty in recognising his\neffects, nor is presumed to have relinquished them.\"--Vattel b. iii.\nch. xiv. sect. 209.\n\n[72] B. ii. ch. x. sect. 9.\n\n[73] The translation proceeds from the xviith to the xixth chapter of\nthe original.--TRANSLATOR.\n\n[74] Sections VI, VII, VIII, IX and X of the original are omitted in\nthe translation. (Translator.)\n\n[75] B. ii. ch. vii. sect. 2.\n\n[76] \"The necessity of making peace authorises the Sovereign to dispose\nof the property of individuals; and the eminent dominion gives him a\nright to do it. Every thing in the political society ought to tend to\nthe good of the community; and since even the powers of the citizens\nare subject to this rule, their property cannot be excepted. The state\ncould not subsist, or constantly administer the public affairs in the\nmost advantageous manner, if it had not a power to dispose occasionally\nof all kinds of property.\"--Vattel, b. iv. ch. ii. sect. 12. ibid. b.\ni. ch. xx. sect. 244.\n\n[77] \"Some damages are done deliberately and by way of precaution, as\nwhen a field, a house, or a garden, belonging to a private person,\nis taken for the purpose of erecting on the spot a tower, rampart,\nor any other piece of fortification,--or when his standing corn,\nor his storehouses are destroyed, to prevent their being of use to\nthe enemy. Such damages are to be made good to the individual, who\nshould bear only his quota of the loss. But there are other damages,\ncaused by inevitable necessity, as for instance, the destruction\ncaused by the artillery in retaking a town from the enemy. These are\nmerely accidents, they are misfortunes, which chance deals out to the\nproprietors on whom they happen to fall. The sovereign ought indeed to\nshew an equitable regard for the sufferers, if the situation of his\naffairs will admit of it: but no action lies against the state for\nmisfortunes of this nature,--for losses, which she has occasioned, not\nwilfully, but through necessity and mere accident, in the exertion of\nher rights. The same may be said of damages caused by the enemy.\" Vat.\nb. iii. ch. xv. sect. 232.\n\n[78] See b. ii. ch. xv. sect. 12.\n\n[79] \"Because then the condition of the contracting parties being\nunequal, there is great reason to believe, that he, to whose\ndisadvantage the inequality is, has pretended to engage himself as\nlittle as possible: and it was the other's business who was to have\nthe benefit of it, to have the thing explained in as clear a manner as\npossible.\"--Barbeyrac.\n\n[80] Sections XLII, XLIII, XLIV, & XLV, of the original, relating\nto decisions by lot and single combat, are omitted in the\ntranslation.--TRANSLATOR.\n\n[81] The XXIII Chapter of the Original, on Private Faith in War, is\nomitted in the translation.--TRANSLATOR.\n\n\n\n\nTranscribers' Notes:\n\n\nPunctuation and hyphenation were made consistent when a predominant\npreference was found in this book; otherwise they were not changed.\nIn particular, inconsistent punctuation in Biblical citations and\nomitted commas or periods in several places have not been remedied.\n\nAmbiguous hyphens at the ends of lines were retained.\n\nSpelling was made consistent when a predominant preference was found\nin this book, or when some occurrences of a word matched modern usage\nwhile other occurrences did not; otherwise, all variations were\nretained. Words spelled differently in quoted material than in the\nprimary author's text were not changed.\n\nSimple typographical errors were corrected; occasional unbalanced\nquotation marks remedied when unambiguous, and otherwise retained.\nThese are noted below.\n\nSeveral chapters were omitted from the English translation of which\nthis is a transcription. The reasons for this are given in the\nfootnotes.\n\nThe Index was not checked for proper alphabetization or correct page\nreferences.\n\nFootnotes, originally at the bottom pages, have been collected and moved\nto the end of this eBook.\n\n\"Controul\" is always spelled that way in the original book.\n\n\"Commit\" sometimes is used where modern practice would use \"commits\".\n\nText uses both \"sometimes\" and \"some times\", \"anything\" and \"any thing\".\n\nThe signatures on pages ix and 17 were actual signatures.\n\nSome footnotes reference Chapters that were omitted from this translation.\n\nPage 3: \"Jugemens d' Ol\u00e9ron\" likely is a misprint for \"Jugements d'\nOl\u00e9ron\"; \"Saurez\" may be a misprint for \"Suarez\".\n\nPage 21: \"\u03b4\u03b9\u03ba\u03b1\u03b9\u03ce\u03bc\u03b1\u03c4\u03b1\" {dikai\u00f4mata} was misprinted as \"\u03b4\u03b9\u03ba\u03b1\u1f60\u03bc\u03b1\u03c4\u03b1\"\n{dika\u00f4mata} and has been changed here.\n\nPage 43: No matching closing quotation mark found for sentence\nbeginning '\"How can kings serve the Lord'.\n\nPage 55: No matching closing quotation mark found for clause beginning\n'\"what can be done by a magistrate'.\n\nPage 59: No matching closing quotation mark found for sentence\nbeginning '\"For though UNDER SOME'.\n\nPage 73: \"\u1f00\u03c1\u03c7\u03b1\u03c2 \u03c0\u03bf\u03bb\u03b5\u03bc\u03c9\u03bd\" {archas polem\u00f4n} was misprinted as\n\"\u1f00\u03c1\u03c7\u03b1\u03c3\u03c0\u03bf\u03bb\u03b5\u03bc\u03c9\u03bd\" {archaspolem\u00f4n}; changed here.\n\nPage 78: No matching opening quotation mark found for sentence ending\n'whom he himself apprehended injury or destruction.\"'\n\nPage 107: \"will not continue to be same river\" likely is missing \"the\".\n\nPage 110: No matching closing quotation mark found for clause beginning\n'\"that he would restore'.\n\nPage 193: \"what is required to be done at a\" was printed as \"to be one\nat\"; changed here.\n\nPage 217: \"sun-set\" was printed that way.\n\nPage 218: \"Goliah\" was printed that way.\n\nPage 249: \"uninjured or endangered\" may be a misprint for \"injured\".\n\nPage 267: \"\u03b1\u1f30\u03c4\u03b9\u03b1\u03c2\" {aitias} was misprinted as \"\u1f70\u03b9\u03c4\u03b9\u03b1\u03c2\" {aitias};\nchanged here.\n\nPage 286: Transcriber added closing quotation mark at the end of the\nparagraph ending with 'or even imminent danger.'\n\nPage 310: the colon in \"which is an act of justice: in the next place\"\nwas poorly printed, and may be either a different punctuation mark or\njust a space.\n\nPage 314: the closing quotation mark in 'denomination of pirates and\nrobbers.\" With' was added by the Transcriber.\n\nPage 321: Transcriber added a comma in \"by that act, voluntarily\"\nbecause there was excess space between the words, which suggested a\nmisprint.\n\nPage 378: \"to remain neuter\" was printed that way.\n\nFootnote 18: Transcriber added a closing quotation mark at the end of\nthe footnote.\n\nFootnote 19: Transcriber added a closing quotation mark after 'my\nneglect or refusal.'","title":"The Rights of War and Peace","tradition":"philosophy-ethics","translated_text":null,"word_count":170381}