text:
A collection of scholarly works about individual liberty and free markets. A project of Liberty Fund, Inc.
Purchase now from Liberty Fund
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 3. https://oll.libertyfund.org/titles/1427,
|Available in the following formats:
|LF Printer PDF
|This text-based PDF was prepared by the typesetters of the LF book.
|EBook PDF
|This text-based PDF or EBook was created from the HTML version of this book and is part of the Portable Library of Liberty.
|This version has been converted from the original text. Every effort has been taken to translate the unique features of the printed book into the HTML medium.
|Simplified HTML
|This is a simplifed HTML format, intended for screen readers and other limited-function browsers.
Grotius's Rights of War and Peace is a classic of modern public international law which lays the foundation for a universal code of law and which strongly defends the rights of individual agents - states as well as private persons - to use their power to secure themselves and their property. This edition is based upon that of the eighteenth-century French editor Jean Barbeyrac and also includes the Prolegomena to the first edition of Rights of War and Peace (1625); this document has never before been translated into English and adds new dimensions to the great work.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
I. The Subject and Design of this Book.I. We have already seen, not only who may make War, but for what Reasons too they are permitted to engage in it. We are now to enquire1 what is allowable in War, and how far, and in what Circumstances it is so. And this we must consider, either simply in itself, or with Regard to some antecedent Promise. What is simply in itself allowable in War, shall be considered first from the Law of Nature, and then from that of Nations. To begin with what Nature allows.Edition: current; Page: [1186]
II. In War all Things necessary to the End are lawful.II. 1. And here we must observe, First, That in Things of a moral Nature, as we have often said before,1 thosea Means which conduce to a certain End, do assume the very Nature of that End: And therefore we are supposed to be authorised to employ thoseEdition: 1738; Page: [517] Things, which are (in a moral, not a physical Sense)2 necessary to the obtaining our just Rights. By Right I understand what is strictly so called, and imports that3 Power of acting which is intirely founded on the Good of Society. Wherefore, as we have remarked elsewhere,b if I cannot otherwise save my Life, I may, by any Force whatever, repel him who attempts it, tho', perhaps, he who does so is not any ways to blame. Because this Right does not properly arise from the other's Crime, but from that Prerogative with which Nature has invested me, of defending myself.
2. By which also I am impowered to invade and seize upon what belongs to another, without considering whether he be in fault or no, whenever what is his threatens mec with any imminent Danger; but I am not to claim a Property in it, for that is not necessary to the End in Question, but only to detain it till my Security be sufficiently provided for; as we have elsewhered declared. So by the Law of Nature I have a Right to take from any one what he has of mine,4 and if this cannot easily be Edition: current; Page: [1187] effected, I may take what is equivalent to it; ande this I may do too for the Recovery of Debt. And in those Cases I become Proprietor of what I have taken, because there is no other Way of redressing the Inequality that was to my Disadvantage.
3. So likewise where the Punishment is just, there all Manner of Violence and Force, and whatever is a Means necessary to execute that Punishment, or is a Part of it, is just too; as Devastations by Fire, or otherwise, provided that they exceed not the Bounds of Equity, but bear a Proportion to the Offence committed.
III. What is lawful and right does not arise only from the Occasion of the War, but also from incident Causes in the Course of it.III. We must remember, Secondly, That this our Right is not to be accounted for only by the first Occasion of the War, but also from other subsequent Causes; as in a Suit of Law, where the contending Party does often acquire and find out a new Right, after the Process is commenced, which was not thought of before. Thus they, who join with him that invades me, whether they be Allies or Subjects, do give me a Right of defending myself against them likewise. Thus they who engage with others in an unjust War, especially in a War which they might or ought to have known to be unjust, are thereby obliged to reimburse the Charges, and to repair the Damages of it, because it is through their Fault that they are sustained. Thus too, those who come into the Measures of a War, undertaken without any warrantable Reason, are themselves culpable, and obnoxious to Punishment, in Proportion to the Injustice that accompanies their so doing; according to Plato's1 Opinion, who justifies the Continuance of a War, Till the Guilty are compelled to undergo the Punishment which the Party offended shall inflict upon them.
IV. Some Things may by Consequence be acted without any Injustice, which would be no Ways lawful had they been purposely and originally designed.IV. 1. We must observe, Thirdly,1 That many Things sometimes fall in indirectly, and beyond our Design, to be lawful to us, to which, in the Nature of the Things, simply considered, we have no Pretence. How Edition: current; Page: [1188] this holds good in the Case of Self-Defence, we have elsewherea shewn. Thus, in the getting of our own,b if just so much as is precisely our Due, cannot be had, we have a Right to take more, but under the Obligation of restoring the Value of the Overplus. Thus a Ship full of Pirates, or a House of Thieves, may be sunk and fired, tho' within the Ship, or the House, there may be Children, or Women, or other innocent Persons, who from such an Assault must needs be exposed to manifest Dan-Edition: 1738; Page: [518]ger.2 Nor is he guilty of Murder, says St. Austin, who has inclosed his Estate with a Wall, if any one by the Fall of it shall be wounded and die.
2. But, as we have frequently advised before, every Thing that is conformable to Right properly so called, is not always absolutely lawful; for sometimes our Charity to our Neighbour will not suffer us to use this rigorous Right. Wherefore, in such Cases, we ought to take all possible Care to prevent all such Accidents, which may fall out beyond what we aim at; unless the Good we design be far greater than the Evil we fear, or unless, where the Good and the Evil being equal, our Hopes of obtaining the Good be greater than our Fears of the Evil, which Prudence must determine; yet so, that always in a doubtful Case we incline, as the Edition: current; Page: [1189] safer Side, to that Part which provides rather for another's Advantage than our own. Let the Tares grow up, (says our best Teacher, Matt. xiii. 29.) lest whilst you gather up them, ye root up also the Wheat with them.3 To destroy whole Multitudes, says Seneca, without Distinction, looks like the Rage of Fire, or the Fall of Buildings. History tells us how much Sorrow and Repentance such an immoderate Revenge cost the Emperor Theodosius, upon the Reproof of St. Ambrose.
3. Nor tho' GOD does so sometimes, ought it to be an Example to us, because of that absolute Right of Dominion which he has over us, which he has not granted us to have over one another, asc I have observed elsewhere. And yet even GOD himself, who is the just Sovereign of Mankind, does often spare a Multitude of wicked Men, for the Sake of a Few that are good; thereby declaring his Equity, as he is a Judge; as fully appears from Abraham's interceding with GOD for Sodom. (Gen. xviii. 23.) And from these general Rules we may easily perceive, how far our Right extends against our Enemies, by the Law of Nature.
V. What we may do against them that supply our Enemies with Necessaries, explained by Distinction.V. 1. Here also there uses to arise another Question, what we may lawfully do to those, who are not our Enemies, nor are willing to be thought so, and yet supply our Enemies with certain Things. There have been formerly, and still are, great Disputes about this Matter, some contending for the Rigour of the Laws of War, and others for a Freedom of Commerce.
2. But first we must distinguish between the Things themselves. For there are some Things which are of use only in War, as Arms, &c. Some that are of no Use in War, as those that serve only for Pleasure; and lastly, there are some Things that are useful both in Peace and War, as Money, Provisions,1 Ships, and naval Stores. Concerning the first, (viz. Things useful only in War) it is true what2 Amalasontha said to the Emperor Edition: current; Page: [1190] Justinian, he is to be reputed as siding with the Enemy, who supplies him with Things necessary for War. As to the second Sort of Things, there is no just Cause of Complaint. Thus Seneca says,3 I will be grateful to a Tyrant,a if what I present him with neither encreases, nor confirms his Power of ruining the State, for such Things a Man may give him without contributing to the common Calamity; which he thus explains, I will not supply him with Money toEdition: 1738; Page: [519] pay his Guards, but if he wants Marble, or Robes of State, I shall injure nobody, by procuring him such Things, to gratify his Luxury. I will supply him with neither Soldiers, nor Arms; but if he will take it as a Kindness, I will help him to Comedians, and other Things that may contribute to the softening of his fierce Temper. I would not send him Gallies and Men of War, but I would procure him Pleasure Boats, Galliots, and other such Vessels, for Diversion and Recreation. So also Saint Ambrose,4 It is not a commendable Liberality to assist him that conspires against his own Country.
3. As to the third Sortb of Things that are useful at all Times, we must distinguish the present State of the War. For if I cannot defend myself without intercepting those Things that are sent to my Enemy, Necessity5 (as I saidc before) will give me a good Right to them, but upon Condition of Restitution, unless I have just Cause to the contrary. But if the Supply sent hinder the Execution of my Designs, and the Sender might have known as much; as if I have besieged a Town, or blocked up a Port, and thereupon I quickly expect a Surrender, or a Edition: current; Page: [1191] Peace, that Sender is obliged to make me Satisfaction for the Damaged that I suffer upon his Account, as much as he that shall take a Prisoner out of Custody, that was committed for a just Debt, or helps him to make his Escape, in order to cheat me; and proportionably to my Loss I may seize on his Goods, and take them as my own, for recovering what he owes me. If he did not actually do me any Damage, but only designed it, then have I a Right, by detaining those Supplies, to oblige him to give me Security for the future, by Pledges, Hostages, or the like. But further, if the Wrongs done to me by the Enemy be openly unjust, and he by those Supplies puts him in a Condition to maintain his unjust War, then shall he not only be obliged to repair my Loss, but also be treated as a Criminal, as one that rescues a notorious Convict out of the Hands of Justice; and in this Case it shall be lawful for me to deal with him agreeably to his Offence, according to those Rules which we have set down for Punishments; and for that Purpose I may deprive him even of his Goods.
4. For these Reasons, those that make War6 publish Manifesto's, and send out Declarations to other Nations, as well to signify the Justice of their Cause, as also what probable Hopes they have to obtain their Right.Edition: 1738; Page: [520]Edition: current; Page: [1192] Edition: current; Page: [1193] Edition: current; Page: [1194]
5. Now the Reason why we refer this Case to the Law of Nature, is7 because we find nothing in Histories decreed by the voluntary Law of Nations concerning it.Edition: 1738; Page: [521] The Carthaginians sometimes took the Romans Prisoners, who carried Provisions to their Enemies,e but upon demand set them at Liberty. When Demetrius had entered Attica with an Army, and had taken the adjoining Towns of Eleusis, and Rhamnus,f designing to starve Athens, he took a Ship, attempting to relieve it, with Provisions,8 and hanged up the Master and Pilot of it, and by that Means deterring others from doing the like, he quickly took the City.
VI. Whether Fraud be lawful in War.VI. 1. As to the manner of acting against an Enemy; Force and Terror are the proper Characteristick of War, and the Method most commonly used: The Query is, whether Deceit be lawful; for Homer said an Enemy might be annoyed,
And Pindar,2
And Virgil's3 Direction,
Is strictly followed even by Riphaeus,
And Solon,4 so famous for Wisdom, also observes this Maxim; so did Fabius Maximus,5commended for it by Silius:
2. In Homer, Ulysses, a very wise Prince, was famous for Stratagems of War; whence6 Lucian makes this Inference, that Deceit in War is commendable. There is nothing more profitable in War, than Fraud, said7 Xenophon; and BrasidasEdition: 1738; Page: [522] in8 Thucydides gives the greatest Honour in War to cunning Stratagems. And in9 Plutarch, Agesilaus said, It is both just and lawful to deceive an Enemy. And Polybius,10 Military Exploits performed by open Force are less considerable than what is done by Stratagem and making good Use of Opportunity. And from him Silius brings in Corvinus speaking thus,11Edition: current; Page: [1197]
So also thought the rigid Spartans, as12 Plutarch observes, therefore they offered greater Victims for a Victory obtained by Policy, than by plain Force.13 The same Author highly commends14 Lysander, ἀπάταις τὰ πολλὰ διαποικίλλοντα τον̂ πολέμου, versed in all the Arts and Skill of War. He also praises Philopoemen,15 that being instructed in the Cretan Discipline, he united the plain and open Way of fighting with Slights Edition: current; Page: [1198] and Stratagems. And16 Ammianus was of Opinion, that Without any Distinction of Valour, or Cunning, all prosperous Successes in War deserve Commendation.
3. The Roman Lawyers17 accounted all Fraud used against an Enemy, innocent; and that it mattered not,18 whether a Man baffled his Enemy by Force or Fraud. Eustathius on the 15th of the Iliad observes that Deceit is not to be blamed, as be-Edition: 1738; Page: [523]longing to a Soldier. And among the Divines,19 St. Augustine, If the War be just, it concerns not Justice, whether it be managed by Force or Craft. And St.20 Chrysostom says that those Generals, that overcame by Subtilty, are most commended.
4. But there are Opinions which seem to maintain the contrary, of which I shall mention some hereafter. To decide this Question, it must be considered, whether Deceit be one of those Things that are always Evil, and in which the Maxim takes Place, that we must not do Evil, that Good may come of it; or whether Deceit be to be reckoned among such as are not Evil in their own Nature, but that it may sometimes happen, that they may be good.
VII. Fraud in its negative Act is not of its self unlawful.VII. We must then observe, that some Fraud consists in a negative Act,1 and some in a Positive; and here I enlarge the Word even to include those Things which consist in a negative Act, according to Labeo,2 who Edition: current; Page: [1199] referred it to that Fraud which is not Evil, when a Man by Dissimulation preserves either his own, or another's.3 Cicero overstretched the Point, when he said, Disguise and Dissimulation should be banished out of human Life. For since we are not obliged to discover to others all we know, or desire; it follows, that it is lawful to dissemble some Things before some Men, that is, to hide and conceal them. We may sometimes wisely conceal the Truth (said4 St. Austin) under some Disguise. And that this5 is sometimesa Edition: current; Page: [1200] necessary and unavoidable especially in Governors, Cicero confesses in many Places. We have a remarkable Instance of this in the Prophet Jeremy, Chap. xxxviii. 27. where the Prophet being asked of the King concerning the Event of the Siege, by the King's Advice, wisely concealed it from the Princes, alledging another Cause of their talking together,Gen. xx. 2. which yet was not false. So Abraham told Abimelech true, when he said Sarah was his Sister, according to the Custom of speaking in those Days, being his near Kinswoman, wisely concealing that6 she was his Wife.Edition: 1738; Page: [524]Edition: current; Page: [1201]
VIII. Fraud in its positive Act distinguished either into such outward Acts as admit of several Constructions, or such as always signify the same by Agreement. Fraud in the former Sense lawful.VIII. 1. But Fraud, which consists in a positive Act, if in Actions is called a Feint; if in Words, a Lye. Some make this Difference between these two, that Words naturally signify the Intent of our Minds, but Actions do not. But on the contrary it is true, that Words of their own Nature, and independently of the Will of Men, signify nothing, unless it be such a confused and inarticulate Noise as is caused by Pain, which comes rather under the Denomination of an Action than a Speech. But if it be objected, that it is peculiar to the Nature of Man, above all other Creatures, that he can discover the Conceptions of his Mind to others, to which End Words were invented; which is certainly true; yet this also should be added, that such a Discovery is not made by Words only,1 but by Gestures, &c. as among Persons that are dumb. Whether those Gestures have naturally something common with the Thing signified, or have only a Signification by human Institution. Like to which are those Characters which (as Paulus2 the Lawyer says) signify not Words formed by the Tongue, but the Things themselves, either from some Likeness, as the Egyptian Hieroglyphicks, or from mere Fancy, as among the Chinese.Edition: current; Page: [1202]
2. There is therefore another Distinction to be observed in this Place, which we made Use of to take away all Doubtfulness and Obscurity, concerning the Term of the Law of Nations. For we then said, that the Law of Nations signified, either what was allowed of by every Nation without mutual Obligation, or that which implied a mutual Obligation.3 In like manner, Words, Gestures and Characters (asEdition: 1738; Page: [525]we have said) were invented to signify by mutual Obligation, which4 Aristotle calls κατὰ συνθήκην, according to common Agreement, but other Things are not so. Hence it follows that it is lawful for me to use other Things as I please, tho'a I foresee that another may place a wrong Construction upon it; I speak of the Use of those Things in itself, and not of the accidental Consequences that it may have. Therefore we must here suppose Cases,5 where no Harm can ensue, or where the Harm itself, setting aside the Consideration of the Deceit, is lawful.Edition: current; Page: [1203]
Of the first we have an Example in our Saviour, who to the two Disciples at Emaus, (Luke xxiv. 28.) προσεποιει̑το, made as tho' he would have gone farther, unless we had rather believe he really intended so, if they had not importuned him to stay: As GOD himself is said to will many Things conditionally, which yet come not to pass, the Condition being not performed. And in another Place, (Mark vi. 48.) CHRIST himself made as tho' he would have passed by his Apostles sailing on the Sea, that is, unless they entreated him to come up into the Ship. Another Example may be given in St. Paul, (Acts xvi. 3.) who circumcised Timothy,6 tho' he well knew what Sense the Jews would put upon it, viz. that the Law of Circumcision (tho' it was now really abolished) did still oblige the Children of Israel, in the Opinion of St. Paul and Timothy; whereas St. Paul had something else in View, that he and Timothy might obtain a greater Opportunity of a familiar Conversation with the Jews. For neither did Circumcision, the ceremonial Law being abolished, by its Institution any longer signify such a Necessity, neither was the Evil, which followed upon the Error, in which the Jews would continue for a while, (tho' afterwards to be laid aside) so great, as that Good which St. Paul designed, which was a more easy Propagation of the Doctrine of the Gospel. The Greek Fathers often call this dissembling οἰκονομία,7 good Management, of which we have an excellent Sentence of Clemens Alexandrinus, who discoursing of a good Man, says, ἐπὶ τω̂ν Edition: current; Page: [1204] πλησίων ὀϕελείᾳ μόνῃ ποιήσει τινὰ ἃ οὐκ ἂν προηγουμένως αὐτῷ πραχθείη, &c.8 He will do some Things for the Benefit of his Neighbour, which otherwise he would not of his own free Will, and first Intention. Such was the Act of the Romans,b who when they were besieged, threw Loaves of Bread from the Capitol, into the Enemies Camp, that they might not be thought to have any want of it.
An Example of the other Case, is the pretended Flight of Joshuac before the Inhabitants of Ai, which is often practised by other Generals. For we suppose here the consequent Harm to be lawful, from the Justice of the War. But such a pretended Flight signifies nothing by Institution, tho' the Enemy may take it as a Sign of Fear, which the other is not bound to guard against, using his own Liberty of going this way or that way, faster or slower, and with such or such a Countenance, as he pleases. The same Thing may be said of those, who use the Enemies Arms or Habits, or set up his Standards or Flag, as we read in many Histories.
For all these Things every Man may make use of, as he pleases, tho' contrary to the general Custom; because that very Custom is established by the Pleasure of particular Persons, not as by common Consent, and therefore obliges none.Edition: 1738; Page: [526]
IX. Of that in the latter Sense, the Question is difficult.IX. There is a greater Dispute concerning those Signs which enter, if I may say so, into the Commerce of Men, and in the wrong Use of which a Lye does properly consist; much is found in Holy Writ against Lying, A righteous Man hateth Lying, Prov. xiii. 5. Remove far from me Falshood and Lyes, Prov. xxx. 8. Thou shalt destroy all those that speak Lies, Psal. v. 7. Lie not one to another, Colos. iii. 9. And this St. Austin stiffly defends; with him agree many Poets and Philosophers. Remarkable is that of Homer,Edition: current; Page: [1205]
And Sophocles,
And Cleobulus,
4 Aristotle said, κατ' αὐτὸ τὸ μὲν ψεν̂δος, ϕαν̂λον καὶ ψεκτὸν, τὸ δὲ ἀληθὲς καλὸν καὶ ἐπαινετὸν, Lying in itself is vile and base, but Truth is beautiful and commendable. Neither does the other Side want its Defenders: As first in Holy Writ,5 it has the Precedents of Men, whose Edition: current; Page: [1206] Probity is commended, who nevertheless have sometimes lied, without being any where blamed for it: As also the formal Decision of many antient6 Doctors of the Christian Church, as Origen, Clemens, Tertullian, Lactantius, Chrysostom, St. Jerome and Cassianus; and indeed almost all of the primitive Christian Writers, as St. Austin7 himself confesses, herein dissenting from them, but owning8 it to be a very difficult and intricate Question, and by the Learned variously disputed, for these are his very Words.
Among the Philosophers, the open Maintainers of this Opinion are Socrates,9 andEdition: 1738; Page: [527] his Disciples10 Plato and11 Xenophon; as also12 Edition: current; Page: [1207] Cicero; and, if we believe Plutarch13 and14 Quintilian, the Stoicks, who reckon this among the Accomplishments of a wise Man, to lie in a proper Place and Manner. Neither does15 Aristotle himself seem to differ from them in some Places, whose καθ' αὐτὸ, in itself, which we have cited, may be interpreted commonly speaking, or the Thing considered in itself, without respect to Circumstances. His Expositor, Andronicus Rhodius, said thus of a Physician that told a Lye to his Patient,16 ἀπατἀ̑ μὲν, ἀπατεὼν δὲ οὐκ ἐστὶν, He deceives indeed, but yet he is not a Deceiver. And he gives the Reason, οὐ γὰρ τέλος ἔχει τὴν ἀπάτην τον̂ νοσον̂ντος, ἀλλὰ τὴν σωτηρίαν, Because he has no Design to deceive his Patient, but to cure him.17 Quintilian before mentioned defending this Opinion said, Many Things are honest, or dishonest, not simply from the Fact, but from the Motives of it. So18 Diphilus,
When Neoptolemus in19 Sophocles asked Ulysses,
Ulysses answered,
The like may be brought out of20 Pisander and Euripides;21 so in Quintilian also we find, it is allowable in a wise Man sometimes to tell a Lye. And22 Eustathius upon the second of the Odysses, said ψεύσεται κατὰ καιρὸν ὁ σοϕὸς, A wise Man will tell a Lye upon Occasion. He also produces Testimonies out of23 Herodotus and Isocrates.Edition: 1738; Page: [528]
X. The Use of Words in another Sense, than that wherein we know they are understood, not always unlawful.X. These so different Opinions may perhaps be reconciled by the common Distinction of Lies, taken either in a stricter or a looser Sense. For Edition: current; Page: [1209] we do not here take the Word Lye so largely, asa comprehending every Untruth that one says, without knowing it to be such, as Gellius1 distinguished between mendacium dicere, and mentiri, to tell an Untruth, and to Lye. But here we take it to signify a Falsehood spoken knowingly, in a Sense contrary either to what we think or design. For what is first, καὶ ἀμέσως, and immediately declared by Words, or any other Signs, are the Conceptions of the Mind: Therefore he does not lie, who tells a Thing that is false, yet supposing it to be true; but he that tells Truth, at the same Time thinking it to be false, does certainly lye. It is the Falshood therefore of the Expression which is requisite to the common Nature of a Lye. Whence it follows, when any Word or Sentence is πολύσηγος, of divers Significations, either by common Use, or by the Custom of Art, or by any Figure that is intelligible, then if our inward Meaning agree with any of these Significations, it is not to be reputed a Lye,2 tho' the Person to whom we speak may take it in a different Sense.Edition: current; Page: [1210]
But these ambiguous Expressions are not rashly to be allowed, but yet may upon Occasions be justified. As if it relates to the instructing of one committed to our Charge, or to avoid some captious Questions.3 Of the former CHRIST gave us an Example in himself, when he said our Friend Lazarus sleepeth, John xi. 11. which his Disciples understood of his taking rest in Sleep. And when he said, John ii. 20, 21. Destroy this Temple, and in three Days I will raise it up, meaning that of his Body, he knew very well that the Jews understood it of the real Fabrick of the Temple. So again, when he promised his Disciples, Luke xxii. 30. That they should sit on twelve Thrones, judging the twelve Tribes of Israel; and Mat. xxvi. 25. That they should drink new Wine with him in his Father's Kingdom, he knew very well, that they understood it of a Temporal Kingdom, whereof they were full of Hopes even to the very Moment of his Ascension, Acts i. 6. Thus he speaks to the People in Parables, that hearing they might not understand, Mat. xiii. 3. that is, unless they came with such Attention and Docility (or Willingness to beEdition: 1738; Page: [529] taught) as was requisite. An Instance of the latter Case we Edition: current; Page: [1211] meet with from prophane History in the Person of L. Vitellius, who being importuned by Narcissus to explain himself, and to speak freely (in regard to the loose Life of Messalina) would not be prevailed upon, but still gave such doubtful and uncertain Answers,4 as would admit of various Senses. Hither we shall refer the Hebrew Saying,5 מוטב ראם לא זשתוק אס יורע ארסלחמיר עתרברג, If a Man can speak ambiguously let him, if not, let him say nothing.
3.† On the contrary it may happen, that to use this kind of speaking may not only be discommendable, but wicked,6 as when either the Honour of GOD,7 or our Charity to our Neighbour, or Reverence to our Superiors, or the Nature of the Thing in Question requires, that we should plainly declare the Truth; so in Contracts (as we have saidb already) Edition: current; Page: [1212] whatsoever the Nature of the Contract requires to be understood, should be declared. In which Sense we may very well understand that of Cicero,8 That a Lye should be banished from all human Commerce, borrowed from the old Attick Law,9 No lying in a Market. In which Places the Word Mendacium is to be taken so largely, as to include even obscure Expressions, which we, properly speaking, do not comprehend under the Notion of Lying.
XI. The form of a Lye, as it is unlawful, consists in a Repugnancy to another's Right. This explained.XI. 1. It is then required to the common Notion of a Lye, that what is either spoken, written, intimated by Characters, or declared by any Gesture, cannot be otherwise understood than in such a Sense1 as differs from the Mind of the Person who expresses it; but to a Lye strictly taken, as it is naturally unlawful, there is necessarily required some peculiar Difference; which if rightly considered, at least according to the common Opinion of Nations, can be nothing else than, the Violation of a real Right, and that subsisting without any Diminution, belonging to him, to whom we make a Sign, or direct our Discourse. For it is certain, that in Respect of himself, let him speak ever so falsly, no Man can lye. I do not here mean every Right, and what is foreign to the present Affair; but that Right which is proper and essential to the Matter in Hand, which is nothing else,2 but the Freedom of him, with whom we discourse to judge of the Conceptions of our Minds, a Freedom which, as by a silent Contract, we are supposed to owe him.3 For this, and no Edition: current; Page: [1213] Edition: current; Page: [1214] other, isEdition: 1738; Page: [530] that mutual Obligation, which Men intended to introduce by establishing the Use of Speech, and such other Signs; for without that such an Establishment had been to no Purpose.
2. It is also requisite, that this Right to judge should subsist without any Diminution, while we discourse.4 For it may happen, that tho' there were such a Right, it ceases or may be taken away, by some other supervening Right, as a Debt may cease by an Acquittance, or Non-Performance of some Condition. It is moreover required, that the Right that is violated be his, with whom we discourse, and not any other's; as in Contracts there arises no Injustice, but by the violating the Right of the Contracters. Hence perhaps it is, that after Simonides, Plato5 refers the speaking of Truth to Justice; and that the Lying which is forbidden, Holy Writ often describes by bearing6 false Witness against our Neighbour, and what7 St. Austin himself puts into the Definition of a Lye,8 A Purpose to deceive; and Cicero9 will have the speaking of Truth referred to the Fundamentals of Justice.
3. But as this Right may be taken away by the express Consent of him, with whom we deal; as if any one shall declare before hand that he will Edition: current; Page: [1215] speak false, and the other allows it, so also by a tacit Consent, or a Presumption founded upon just Reason, or by the Opposition of another's Right, which by the Judgment of all Men is far more considerable; from these Principles rightly understood many Inferences may be drawn, which may be of Use to reconcile those different Opinions formerly mentioned.Edition: 1738; Page: [531]
XII. That it is lawful to speak what is false to Children and Madmen.XII. First, when we talk to Children or Madmen, if what we say be false, yet it cannot be reputed a criminal Lye. Because it is generally allowed,
And2 Quintilian says, speaking of Children, We make them believe many Things for their Advantage. But the immediate Reason is, because Children and Madmen not having a freedom of Judgment, they cannot be injured in that Liberty which they have not.
XIII. Also when he is deceived, to whom our Speech is not directed, and whom without Speech we may lawfully deceive.XIII. Secondly, whilst we discourse with one Man that is not deceived, if a third Person be thereby deceived, it is no Lye; no Lye in Respect of him to whom it was spoken, because his Judgment continues unperverted, as does his who hearing a Fable, takes it as such, or his who hears a figurative Speech, whether κατ' εἰρωνειὰν by way of Irony, or καθ' ὑπερβολὴν, by an Hyperbole, which Figure brings us to the Truth1 by Edition: current; Page: [1216] something which is not true; as Seneca speaks, and Quintilian calls it, A lying Exaggeration. Neither is it a Lye in respect of him, that hears it by the by; because he is not concerned in the Discourse, and therefore we are not any ways obliged to inform him right; but if that Person mistake our Meaning, he may thank himself, and not any Body else, for his being deceived. For (if we consider it rightly) the Discourse between ourselves is no Discourse at all in respect to a Stander by, but a meer Sound that may indifferently signify any Thing. Therefore neither was Cato the Censor to be blamed fora promising Assistance to his Confederates, tho' falsly, nor Flaccusb in reporting to others, that Aemilius had taken the Enemies City by Storm; tho' the Enemies were deceived by it. Plutarch relates the like of Agesilaus. For nothing was here said to the Enemy, and the consequent Damage was an accidental Thing, and not in itself unlawful to wish, or cause to an Enemy. And to this Kind do2 St. Chrysostom and St.3 Hierom refer that Sayingc of St. Paul, wherein he reproved St. Peter at Antioch for too much judaizing, supposing that St. Peter well understood, that he did it not seriously, but to accommodate himself to the Weakness of those who heard him.
XIV. And when our Speech is directed to him, that is willing to be deceived.XIV. 1. Thirdly, When we are certain that he with whom we discourse will not only not be offended, tho' his Judgment be for that Time imposed upon, but on the contrary will be thankful for it, on account of the Advantage, that he shall get by it, there is no Lye properly so called, Edition: current; Page: [1217] or unjust Deceit, committed, no more than he can be charged with Theft, who presuming the Owner's Consent spends something of his of small Value to obtain him a great Profit. For in such Cases, where we have so much Reason to be assured of what we think, a Presumption of another's Will has the same Force as an express Consent. And it is an incontestable Maxim that no Wrong is done to him that is willing. Wherefore a Person seemsEdition: 1738; Page: [532] not to be culpable, when he comforts his sick Friend, by making him believe what is false, as Arria did Paeteus upon the Death of their Son, which Story is ina Pliny's Epistles; or he that in a Danger encourages the Soldiers with false News, whereby he occasions their Safety and Victory; and so the deceived is not catched, as Lucretius speaks.
2. And1 Democritus, ἀληθομυθεύειν χρεὼν, ὅπου λώϊον We must speak Truth, when it is for our Interest; and Xenophon,2 ϕίλους δίκαιον ἐξαπατἀ̑ν, ἐπὶ δὲ ἀγαθῷ, It is lawful to deceive our Friends, for their Advantage; and3 Clemens Alexandrinus allows, ψεύδεσθαι ἐν θεραπείας μέρει, To use a Lye for a Remedy:4 So Maximus Tyrius, καὶ ἰατρος νοσον̂ντα ἐξαπατἀ̑, καὶ στρατηγὸς, καὶ κυβερνήτης νάυτας, καὶ δεινὸν οὐδὲν, The Physician deceives his Patient, the General his Soldiers, and the Pilot his Mariners, and yet no Injury. And Proclus5 on Plato gives this Reason, τὸ γὰρ ἀγαθὸν κρει̑ττόν ἐστι τη̂ς ἀληθείας, Goodness is preferable Edition: current; Page: [1218] to Truth. The like we have in Xenophon,6 that their Confederates were coming to their Assistance; and of Tullus Hostilius, thatb he ordered the Alban Army to withdraw, in order to surround the Enemy; (tho' he knew it was an Effect of the Alban General's Treachery) and that Salubre Mendacium,7 that wholesome Lye of Quinctius the Consul (as Historians call it) to encourage his Army, gave out, that his left Wing had routed their Enemies; and of many others. But we must observe, that the Injury done to the Judgment in this Case, is of less Concern, because it is but as for a Moment, and the Truth immediately appears.
XV. And when he that speaks, uses that Sovereign Power that he has over his own Subjects.XV. 1. Fourthly, Another Consequence which has an Affinity with the former is this, that it is not a criminal Lye, when he who1 has an absolute Right over all the Rights of another, makes use of that Right, in telling something false, either for his particular Advantage, or for the publick Good. And Plato seems to have respect to this,2 when he allows Princes the Liberty to speak false. And yet3 when he sometimes grants, and sometimes takes away this Privilege to, and from Physicians, he seems to make this Difference, that he gave it to the publickly authorized ones, and took it away from such as assumed it to themselves. Yet the same Edition: current; Page: [1219] Plato does justly acknowledge,4 that it is not suitable to the Nature of GOD to lye, notwithstanding the Sovereign Power that he has over Men, because it is an5 Argument of Weakness to fly to such Shifts.Edition: 1738; Page: [533]Edition: current; Page: [1220]
2. An Example of this, perhaps, innocent Falshood we have6 in Joseph, and commended by Philo,a who being Viceroy, pretends, tho' against his Knowledge, to charge his Brethren, first with being Spies, and afterwards Thieves. And in Solomon, who gave a remarkable Demonstration of his divine Wisdom, when to discover the true Mother, he commanded the living Child to be divided, when he intended nothing less [[sic: of the kind]]. 1 Kings iii. 25, 26, 27. True is that Saying of Quintilian,7 Sometimes the common Good requires that some Falshoods should be maintained.Edition: current; Page: [1221]
XVI. Or perhaps, when the Life of an innocent Person, or something equal to it, cannot otherwise be preserved.XVI. Fifthly,1 When the Life of an innocent Person, or something equal to it, cannot otherwise be preserved, or the Execution of a dishonest Act be otherwise prevented; as was the Fact of Hypermnestra,2 commended by Horace.Edition: 1738; Page: [534]
XVII. That it is lawful by speaking false to deceive an Enemy, by whom asserted.XVII. 1. What we have now laid down, does not extend so far as the common Maxim of some wise Men, who assert in general, and without Edition: current; Page: [1223] Restriction, that it is lawful to lye to an Enemy: Thusa Plato andb Xenophon among the Greeks,1 Philo among the Jews, and St. Chrysostom among2 the Christians, to the Rule given against Lying, add this Exception, Unless we have to do with an Enemy. Hither we may perhaps refer that Message sent by the Men of Jabesh Gilead to the Ammonites, by whom they were besieged, 1 Sam. xi. 10. And that of3 ElishaEdition: 1738; Page: [535] the Prophet, 2 Kings vi. 19. as also that of Valerius4 Laevinus, who boasted that he killed Pyrrhus.Edition: current; Page: [1224]
2. To the third, fourth, and fifth of the Observations abovementioned, we may refer that of Eustratius Archbishop of Nice,5 Ὁεν̂̔ βουλευόμενος οὐκ ἐξ ἀνάγκης ὁ ἀληθεύων ἐστιν· ἐστὶ γάρ πὸτε τὸν ὀρθω̂ς, βουλευόμενον καὶ περὶ αὐτον̂ τον̂ ψεύδους βουλεύσασθαι, ἵν· ἐπιτηδὲς ψεύδηται πρός τινα ἢ ἐχθρὸν ὄντα, ἵνα σϕάλη αὐτὸν, ἢ ϕίλον ἵν' ἐκκόψῃ αὐτὸν ἀπὸ κακον̂, καὶ τούτων τὰ παραδείγματα ἐν ταις ἱστορίαις πολλὰ. There is not always a Necessity that a good Counsellor should speak Truth; for possibly a good Councellor may consult how he may designedly tell a Lye, whereby either to deceive his Enemy, or save his Friend from Harm. Examples of these Kinds are common in all Histories. And Quintilian6 says, that a Lye, otherwise blameable, even in a Slave, will deserve Commendation, when a wise Man makes Use of it to hinder one from being murdered by Highwaymen, or to save his country by deceiving an Enemy.
3. I know the Schoolmen of some Ages past will not allow of this,c who out of all the primitive Fathers have generally chose7 St. Austin for their Guide in almost every Thing; yet, tho' they are scrupulous of admitting false Speaking in any Case, they allow of tacit Interpretations, so contrary to all Use, that it is doubtful whether it be not better to admit of false Speaking to some Persons, in the fore-mentioned Cases, or some of them (for I do not here pretend to determine any Thing) than so generally to distinguish them from Falshood, as when they say I know not, they mean, I know not how to tell you so. Or, I have nothing, they mean, I have nothing to give you. And many such like mental Reservations, which even common Sense is ashamed of; and which, if allowed, will introduce plain Contrarieties; so that he that affirms any Thing, may be said to deny it, and he that denies a Thing, may be said to affirm it.
4. For it is certain, that there is no Word8 but may admit of a double Interpretation, because every Word, besides the primitive9 Signification, Edition: current; Page: [1225] 10has also a derivative one, and that divers,d according to the Diversity of Arts, and also others by Metaphor, or some such Figure. Neither do I like their Device better, who, as ifEdition: 1738; Page: [536] they quarrelled more with the Word than the Thing, call that Jest which they speak with a Countenance and Pronunciation very serious.
XVIII. This is not to be extended to Words promissory.XVIII. But we must observe, that what we have here said concerning false Speaking, is to be referred to assertory (or affirming) Speech, (and that too so far only as to hurt Nobody, but a publick Enemy)1 but not to promissory. For every Promise, as I said before, confers a new and special Right to the Person promised: And this is in Force, even among Enemies, notwithstanding their open Hostility, and that not only in express Promises, but also in tacit ones, as when an Interview is demanded, of which we shall treat more here after, when we come to speak of publick Faith to be preserved amongst Enemies.
XIX. Nor to Oaths.XIX. Neither is it to be extended to Oaths, either as sertory or promissory, for Oaths have a Power to exclude1 all Exceptions which may arise from Edition: current; Page: [1226] the Party we deal with, because therein we treat not only with Men, but with GOD, to whom we stand obliged by our Oaths, tho' there should arise no Right at all to Man: And, as I have said already, it is not so in other Speeches, as in Oaths, for in others it is enough to clear us of a Lye, if the Words be true in any Sense, not altogether unusual; but in Things sworn2 it is necessary that our Words be true in that Sense, in which we sincerely believe those to whom we swear, understand them; so that we perfectly abhor3 their Impiety, who scruple not to affirm, that it is as lawful to deceive Men with Oaths, as Children with Toys.
XX. It is more generous, and more agreeable to Christian Simplicity to abstain from Falshood, even to our Enemies, illustrated.XX. 1. We know there are some Kinds of Fraud, which, tho' naturally permitted, yet are rejected by some Nations and Persons, not so much on the Account of any Injustice in them, as out of either a Greatness of Spirit, or sometimes a Confidence of our own Strength. There is in1 Aelian a remarkable Saying of Pythagoras, that Man comes near to GOD in two Things, in always speaking Truth, and in doing Good to all Men. And in Jamblicus,2 Truth is the Guide to all Good, both divine and human. And in Aristotle,3 Ὁ μεγαλόψυχος παῤῥησιαστικὸς, καὶ ἀληθευτικὸς, A Man of a great Soul delivers himself with Freedom and Truth. And in4 Plutarch, Τὸ ψεύδὲσθαι δουλοπρεπὲς, It is base and servile to lye. And5 Arrianus of King Ptolemey, καὶ αὐτῷ βασιλει̑ ὄντι αἰσχρότερον ἢ τῷ Edition: current; Page: [1227] ἀλλῳ ψεύσασθαι ἠ̂ν, It is much worse in a King to lye, than in another.6 So the same Author, of Alexander, Οὐ χρη̂ναι τὸν βασιλέα ἄλλο τι ἢ ἀληθεύειν, πρὸς τοὺς ὑπηκόους, A Prince should speak nothing to his Subjects but Truth. And7 Mamertine speaks of Julian. Admirable is the Agreement between our Prince's Tongue and his Heart; he is sensible that Lying argues a base and mean Spirit, and is a servile Vice; and whereas Fear or Want makes Men Lyars, that Prince is ignorant of his own Majesty that lyes. Plutarch8 records of Aristides, Φύσις ἱδρυμένη ἐν ἠ̂θει βεβαίῳ καὶ πρὸς τὸ δίκαιον ἀτενὴς, ψεν̂δος δ' οὐδ' ἐν παιδια̂ς τινι τρόπῳ προσιεμένη, He was naturally so great an Admirer of Truth, that he would not allow of a Lye in Jest. And Probus of Epaminondas,9 So great a Lover of Truth, that he would not tell a Lye, tho' butEdition: 1738; Page: [537] for Sport. Which ought the more religiously to be observed by10 Christians, who are not only commanded to use Simplicity, Matt. x. 16. but are also forbidden idle11 Talk, Matt. xii. 36. having him for an Example in whose Mouth was found no Guile. Wherefore, as12 Lactantius said, he that is truly honest and just will not say with Lucilius, Homini amico ac familiari non est mentiri meum, It is not my Custom to tell a Lye to my Friend; but also will think it his Duty not to lye to a Stranger, or an Enemy; nor will his Tongue ever speak what his Heart does not think. Such a one was Neoptolemus, says Sophocles,13 ὑπερβάλλων Edition: current; Page: [1228] ἁπλότητι, καὶ εὐγενείᾳ, Excelling for his generous Candor: As Dion Prusaeensis rightly observed, who being urged by Ulysses to use Treachery, replied,
And Euripides,15
3. Thus16 Alexander said he would not steal a Victory; and Polybius17 writes, that the Achaeans hated to use Fraud against an Enemy, esteeming that the surest Victory, which, to use Claudian's Words,
So were the Romans till the second Punick War; so that19 Aelian said, ἴσασι Ῥωμαι̑οι ἀγαθοὶ ει̑ναι καὶ οὐ μὲν διὰ τέχνης καὶ ἐπιβουλη̂ς καταγωνίσασθαι τοὺς ἐχθροὺς, The Romans are truly valiant, overcoming their Enemies, not by Craft and Subtilty, but by plain Force. And when Perseus the Macedonian King was deceived by the Hopes of Peace,20 the old Senators disallowed the Act, as inconsistent with Roman Bravery, saying, that their Ancestors prosecuted their Wars by Valour, not Craft, not like the subtil Carthaginians, nor cunning Grecians, among whom it was greater Glory to overcome their Enemies by Treachery, than by true Valour. To which they added, That sometimes Cunning might for a little While prevail against Valour, but his Courage was for ever lost, who was convinced that in a regular andEdition: 1738; Page: [538] just War, he was neither by Fraud, nor by Chance, but engaging closely in Battle, with his whole Strength, fairly vanquished. So in later Times we read in Tacitus,21 That the Roman People avenged themselves on their Enemies, not by Craft or Cunning, but openly, and by Force of Arms. Such also were the22 Tibarenes (a People of Cappadocia) who always proclaimed the Time and Place of Battle. The like does Mardonius in Herodotus23 testify of the Grecians in his Time.
XXI. That it is not lawful for us to force another to do what is lawful for us to do, but not for him.XXI. As to the Manner of prosecuting a War, this Rule is also necessary,1 that whatsoever is unlawful for a Man to do, is also unlawful for another Edition: current; Page: [1230] to force or persuade him to. As for Example,2 it is unlawful for a Subject to kill his Prince, or to deliver up a Town without the Consent of a Council of War, or to plunder his Countrymen. Therefore it is also unlawful to persuade him, who continues a Subject, to do so; for he that causes another to sin, always sins himself; neither is it enough to say, that it is lawful for him who tempts another to a base Act to do it himself, as to kill an Enemy, suppose; he may kill him, it is true, but not in such a Manner. And St. Augustine3 says true, It signifies nothing, whether a Man commit a Crime himself, or employ another to do it for him.
XXII. Yet we may use his Service that freely offers it.XXII. But it is another Thing if a Person shall freely offer himself, without any Persuasion to it; for it is not unlawful for us then to make use of him, as an Instrument, to do that which it is lawful for us to do. As we have proved already,a by the Example of GOD himself. We receive a Deserter by the Law of War, said Celsus,1 that is, it is not contrary2 to the Law of War, to receive him, who quitting the Enemy's Party, embraces ours.
I. Naturally no Man is bound by the Fact of another but the Heir.I. 1. Let us now come to those Rights1 which the Law of Nations allows us, which partly belong to every War, partly to some particular Kinds of War only. Let us begin with the first. By the bare Law of Nature no Man is bound by the Fact of another, but he that inherits his Goods.2 For when Pro-Edition: 1738; Page: [539]perty was first introduced, it was then agreed on, that all Debts should pass together with the Goods to the next Possessor. The Emperor Zeno used to say,3 that it was contrary to natural Equity, that one Man should be troubled for another Man's Debt. Hence arise those Titles in the Roman Laws,a that a Wife shall not be sued for the Husband; nor the Husband for the Wife; the Son for the Father; nor the Father or Mother for the Son.
2. Neither (as Ulpian4 says expressly) shall particular Persons be obliged for the Debts of the Community, that is, if the publick Stock Edition: current; Page: [1232] be able to discharge them; otherwise they shall be, not as particular Persons, but as they are part of the Whole.5 Seneca says, If any Man lend Money to my Country, I shall not own myself his Debtor, nor take it as my own Debt,b but shall willingly pay my Proportion to discharge the Debt. He had said before, As one of the People, not as for myself, I shall pay, but advance it for my Country. So again, Every particular Person owes, not as his own Debt, but as part of the Publick. Hence it was particularly provided by the Roman Laws, that no6 Peasant should be obliged for the Debts of another Peasant; and in another Place, that7 no one's Possession should be distrained for the Debts of another, nor even for the Publick; and in Justinian's Novels, ἐνεχυριασμοὶ, Reprisals,8 are expressly forbid; giving this Reason for it, because it is not just that one Man should be the Debtor, and another be forced to pay the Debt; where also such Exactions are called odious. And Theodorick,9 in Cassiodore, called it a base License, for one Man to be kept as a Pledge for another.
II. But by the Law of Nations, the Goods and Persons of Subjects are obliged for their Prince's Debts.II. 1. Tho' this be true, yet by the1 voluntary Law of Nations, it may be, and as appears has been introduced, that whatsoever Debts any State, or the Prince, shallEdition: 1738; Page: [540] contract, either primarily by themselves, or be engaged for by not restoring to others what is their Right; all the Edition: current; Page: [1233] Goods, both corporal2 and incorporal, of their Subjects, shall be obliged to discharge. But this was occasioned by a Kind of Necessity, otherwise there would be such a Loose given, as to let in all Manner of Injuries, Edition: current; Page: [1234] for the Goods of Princes cannot so easily be seized upon as those of private Men, who, being many in Number, have each their own. Wherefore Justinian3 reckons it among those Rights which Nations have established amongst themselves, because they judge it useful and necessary to Mankind.
2. Neither is this so disagreeable to Nature,a that it might not be brought in by Custom, and the tacit Consent of Nations, since Sureties stand obliged for other Mens Debts, without any other Cause than their own free Consent. It was also believed, and with Reason believed, that Foreigners, for whom little Regard is had in many Places, would not be able so easily to obtain their Right, or find Means to be indemnified, as the Members of the same Civil Society amongst themselves. Besides, the Benefit arising from this Obligation being common to all People, they that find themselves aggrieved by it at one Time, may be relieved by it at another.
3. That this has passed into a Custom, appears not only from4 compleat Wars between Nation and Nation, (for what is practised in such Wars the very Words of the Denunciation declare).5 Against the antient Latin People, and the Men of old Latium, I denounce and make War, says the Herald in Livy. So when the People's Consent was demanded,6 Is it your Will and Pleasure that War shall be proclaimed against King Philip, and the Macedonians, and all under his Dominion? And in the Decree itself, The Roman People do denounce War against the Hermundulian Edition: current; Page: [1235] People, and the Men of Hermunduli. Which is out of Cincius, in his Res7 Militaris. Also, in another Place, Let him be an Enemy, and all that are8 under his Protection. But also from what is practised where no perfect War is absolutely denounced; yet where a certain violent Prosecution of our Right is necessary, which is, as it were, an imperfect War. Agesilaus formerly told Pharnabazus, a Subject to the King of Persia,9 Ἡμει̑ς, ὠ̑ ϕαρνάβαζε, καὶ ϕίγοι ὄντες πρότερον βασιλέως, ἐχρώμεθα τοι̑ς ἐχείνου πράγμασι ϕιλικω̂ς· καὶ νν̂ν πολέμιοι γεγονότες, πολεμικω̂ς· ἓν ον̂̔ν καί σε τω̂ν βασιλέως κτημάτων ὁρω̂ντες εἰ̂ναι βουλόμενον, εἰκότως διὰ σον̂ βλάπτομεν ἐκει̑νον, When (O Pharnabazus) we were heretofore Friends to the King, we dealtEdition: 1738; Page: [541] friendly to all that belonged to him; but now being his Enemies, we shall use them all as Enemies; and therefore, since you resolve to continue one of his, we shall endeavour to hurt him through you.
III. An Example in taking of Men prisoners.III. 1. A Branch of the Execution of this Right is, what the Athenians called Ἀνδροληψίαν, Taking of Men Prisoners: Concerning which the Attick Law was this,1 Ἐάν τισ βιαίῳ θανάτω ἀποθανῃ, ὑπὲρ τούτου τοι̑ς προσήκουσιν εἰ̂ναι τὰς ἀνδροληψίας, ἔως ἂν ἢ δίκας τον̂ ϕόνου ὑποσχωσιν, ἢ τοὺς ἀποκτείναντας ἐκδω̂σι· τὴν δὲ ἀνδροληψίαν εἰ̂ναι μέχρι τριω̂ν πλέον δὲ μή, If any Man was found murdered, the next of Kin had a Right to take any three Men, and no more, and detain them till the Murderer were either punished or delivered up in Order to it. Hence we may see, that there is a Kind of incorporeal Right of Subjects, (that is, a Liberty to live where they please, and to do what they please) engaged Edition: current; Page: [1236] for the Debts of every Society, which ought to punish such of their own Body, who shall injure those of another Society; so that the Members thereof may be held in Bondage until the Society do that which it is bound to do, that is, punish the Offenders. For tho' the Aegyptians (as we learn out of Diodore) did maintain, that it was not just to imprison a Man for Debt, yet there is nothing in it contrary to Nature; and the contrary Practice prevailed, not only amongst the Greeks, but also amongst other Nations.
2. Aristocrates, who was Contemporary with Demosthenes, proposed that a Decree might pass, that whosoever should kill Charidemus, might be taken wherever he was met with; and who ever made Resistance should be held as an Enemy. In which Demosthenes finds these Faults. First, That2 Aristocrates did not distinguish the killing Charidemus justly or unjustly, since it was possible to have been justly. Next, That he did not put in this Clause, that in Case Charidemus happened to be killed, Judgment should first be demanded against the Murderer, before the Permission of seizing him was made use of. And thirdly, That not they among whom he should be killed, but they that protected the Murderer, should be reputed as Enemies. The Words of Demosthenes are these, Ὁ μὲν νόμος, ἂν μήτε δίκας ὑπόσχωσι παῤ οἰ̂ς ἂν τὸ πάθος γένηται, μήτε τοὺς δεδρακότας ἐκδίδωσι, κελεύει κατὰ τούτων εἰ̂ναι τὸ ἀνδρολήψιον κατὰ τριω̂ν· ὁ δὲ τούτους μὲν ἀθώους παρη̂κε, καὶ οὐδὲ λόγον πεποίηται περὶ αὐτω̂ν οὐδένα, τοὺς δὲ τὸν ἤδ' πεϕευγότα, ϕήσω γὰρ οὕτω, κατὰ τὸν κοινὸν ἀνθρώπων νόμον, ὃς κει̑ται τὸν ϕεύγοντα δέχεσθαι ὑποδεξαμένους ἐκσπίνδους εἰ̂ναι γράϕει ἐὰν μὴ τὸν ἱκέτην ἔκδοτον διδω̂σιν, If a Murder be committed among any People, and they refuse either to punish, or deliver up the Murderer, the Law allows us to seize on three Men; but he (Aristocrates) leaves these Men untouched, and does not so much as mention them, but would have those prosecuted as Enemies, Edition: current; Page: [1237] who have, according to the common Right of Nations concerning Suppliants, received him that has fled to them for Protection, (for so I put the Case) unless they deliver him up. The fourth Thing that he finds Fault with, is, That Aristocrates would immediately bring it to an open and compleat War, whereas the Law only demands the taking up of three Men.
3. Of these four Exceptions, the first, second, and fourth are reasonable, but the third, unless confined to the sole Event of the Murder done, either accidentally, or in Self-Defence, I cannot help thinking, that Demosthenes reasons here rather like an Orator, or one that seeks for every Thing that may serve to favour his Cause, than according to Truth and Right; for (as we saida before) that Right of Nations to receive and defend Suppliants, does only concern them whom Fortune, not their own Crime, has made miserable.
4. Otherwise there is no Difference between those among whom the Crime was committed, and them who refuse either to punish or to deliver up the Offender. And therefore the Law it self, cited by Demosthenes, has been thus interpretedEdition: 1738; Page: [542] either by Custom, or by some express Clause, added afterwards to prevent the like Cavils: No Body will deny the Truth of one of them, who has read that of3 Julius Pollux, ἀνδρολήψιον δὲ ὅταν τὶς τοὺς ἀνδροϕόνους καταϕυγόντας ὥς τινας ἀπαιτω̂ν μὴ λαμβάνῃ ἔξεστιν ἐκ τω̂ν οὐκ ἐκδιδόντων ἄχρι τω̂ν τριω̂ν ἀπαγαγει̑ν, The seizing of Men is then lawful, when a Man having demanded Murderers who have fled to others for Refuge, cannot receive them; for the Right of apprehending three Men, is against those that refuse to deliver up the Delinquent. And so4 Harpocration, Ἀνδροληψία τὸ ἁρπάζειν ἄνδρας ἐκ τινὸς πόλεως· ἐνεχύραζον γὰρ τὴν ἔχουσαν πόλιν τὸν ἀνδροϕόνον, καὶ μὴ προϊεμένην αὐτὸν εἰς τιμωρίαν, The Right of taking Prisoners, is to snatch away some Men from some City: For against such States, who received Malefactors, and refused to deliver them up to Punishment, they antiently used this Right of Reprisal.
5. The like may be done by any State, whose Subject has been manifestly and injuriously taken away and detained. So at Carthage some Edition: current; Page: [1238] opposed the taking Ariston the Tyrian Prisoner,5 upon this account, That the like would be done against the Carthaginians, both at Tyre, and in other trading Towns, where their Business called them.
IV. And in seizing their Goods.IV. Another Kind of forcible Execution is ἐνεχυριασμὸς,1 Reprisals among divers Nations, called so by our moderna Lawyers, which the Saxons and English call2 Withernam, and the French, where commonly an express Permission must be obtained from the King for that Purpose, Letters of3 Mark, and is of Force (as4 Lawyers say) where Right is denied.Edition: current; Page: [1239]
V. Which is lawful when our Right is first denied, and when that is, where is also shewed, tho' the Thing be adjudged, yet it neither gives, nor takes away any Man's Right.V. 1. Which may be supposed, not only when Judgment cannot within a reasonable Time be obtained against a Malefactor, or a Debtor, but also when in a Case that will not admit of any Doubt, (for in doubtful Cases the Presumption is in favour of the Judges established by public Authority) Sentence shall pass plainly against Right. For the Authority of the Judge is not of the same Force against Strangers, as Subjects: Nay, even between Subjects, it does not make void a just Debt. For (as Paulus1 the Lawyer observes) A real Debtor, tho' he be dischargedEdition: 1738; Page: [543] by the Edition: current; Page: [1240] Judge, yet by the Law of Nature still continues a Debtor; and when by an unjust Sentence, a Creditor had taken away something from the right Owner, that had not been the Debtor's, as if engaged to him, the Question being put, whether the Debt being paid, that Thing should be restored to the Debtor,2 Scaevola maintained that it should. Here is the Difference; Subjects are bound up by the Sentence of the Judge, tho' it be unjust, so as they cannot oppose the Execution of it lawfully, nor by Force recover their own Right, for the Efficacy of that Power under which they live: But Strangers have a coercive Power, tho' it be not lawful to use it, whilst they may recover their Right in a judicial Way.
2. Therefore in such a Case, that both3 the Persons and Moveables of his Subjects, that refuses to render Justice, may be seized, is not indeed Edition: current; Page: [1241] authorized by Nature, but generally received by Custom. We have a very old Example of this in Homer's Iliad, where Nestor is said to drive away the Cattle of the Eleans, because they had before plundered his Father's Horses,4 ῥύσι' ἐλαυνόμενος, taking them by way of Reprisal; where ῥύσια is expounded by Eustathius; τὰ ἀντὶ τινω̂νEdition: 1738; Page: [544] ῥυόμενα, ὅ ἐστιν ἑλκόμενα καὶ ἀντὶ τω̂ν προαρπασθέντων ἁρπαζόμενα, Things taken in lieu of others, that is, seized, and carried away to make amends for others taken from us. Whereupon, as the Story goes, Proclamation was made, that every Man to whom the Eleans owed any Thing, should come, and take of the Spoil proportionably to his Debt, that is to say,
Another Example we have in the Roman History, where Aristodemus, Tarquin's Heir, seized the Roman Ships at Cumae,6 for the Goods of Edition: current; Page: [1242] the Tarquins detained at Rome.7 Dionysius Halicarnassensis says he took the Servants, Cattle, and Money. And in Aristotle8 in his second Book of Oeconomicks, we find a Decree of the Carthaginians to seize foreign Ships, εἴ τις σύλαν ἔχει, If any had a Right of Reprisals.
VI. This Right reaches not to the Life of him that is taken.VI. It has also been believed among some People, that the Lives of innocent Subjects stand engaged on the like account, and that perhaps upon this Presumption, that every Man has an absolute Power over his own Life, and that it may be transferred to the State; which we have said elsewhere,a is without Foundation, and not consistent with sound Divinity. Yet it may happen, that Subjects may be killed, tho' not designedly, but accidentally;1 namely, while they attempt by Force to hinder the Execution of this Right. But if such a Thing may be foreseen, we Edition: current; Page: [1243] are obliged by the Law of Charity2 to forbear the Prosecution of our Right, (as we have shewed in another Place) since by that Law we Christians especially should set a greater Value upon the Life of a Man, than upon our Goods, as he has been also shewedb elsewhere.
VII. The Distinction herein between the Civil Law, and the Law of Nations.VII. 1. Moreover in this, as in several other Cases, we must take heed, that we distinguish between those Things that are properly due by the Law of Nations, and those that are due by the Civil Law, or by particular Agreements between some People.
2. By the Law of Nationsa all the Subjects of the Sovereign from whom one has received an Injury, who are such from a permanent Cause (i.e. settled in the Country) are liable to this Law of Reprisals, whether they be Natives or Foreigners; but not if they be only Travellers, or sojourn there but for a little Time. For these Reprisals are much of the same Nature with Taxes, which are introduced for the paying of publick Debts. Wherefore they are exempted from them, who only for a Time are Subjects to the Law of the Place. Amongst perpetual Subjects,Edition: 1738; Page: [549] the Law of Nations excepts only from Reprisals, the Persons of Ambassadors1 and their Baggage, when they are not sent to our Enemies.
3. But by the Civil Law of Nations, the Persons of Women and Children use to be privileged, and even the Goods of Scholars and such as Edition: current; Page: [1244] go to Fairs. By the Law of Nations every Person2 is permitted to use the Right of Reprisals, as at Athens, ἐν ἀνδρολεψία, in the seizure of Persons. By the Civil Law of many Nations this Right must first be desired of the Sovereign, in other Places from the Judges: By the Law of Nations3 the Propriety of Things taken, is immediately acquired to the Value of the Debt and Charges,4 the remainder to be restored: By the Civil Law, the Persons concerned therein use to be cited, and the Goods by publick Authority sold, and delivered to the Creditors. But in these Edition: current; Page: [1245] and the like Cases one may consult the Civilians, and especially Bartolus, who has written concerning Reprisals.
4. I shall add this because it helps somewhat to qualify the Severity of this Right, in itself too rigid, viz.b that they who either by not paying what they owe, or not doing Justice to injured Persons, have occasioned these Reprisals, are bound by the Laws of GOD and Nature,5 to make Satisfaction for those Losses, which others have suffered upon this account.
I. That a solemn War by the Right of Nations, is to be between divers People.I. 1. We havea already mentioned, that according to the Opinion of the best Authors, a War is often said to be just, not from the Cause whence itEdition: 1738; Page: [550] arises, nor, as elsewhere, from the great Actions1 done in it, but from some peculiar Effects of Right. But what manner of War this is, is best understood by the Definition which the Roman Lawyers give of an Enemy. Pomponius says,2 They are Enemies, who publickly denounce War against us, or we against them; the rest are but Pirates, or Robbers. So says Ulpian,3 They are Enemies against whom the People of Rome have publickly declared War, or they against the Romans; the rest are called pilfering Thieves, or Robbers. Wherefore he that is taken by Robbers, is not a Slave to those that take him, neither does he want the Right of Postliminy. But one taken by the Enemy, suppose by the Germans, or Parthians, is the Enemies Slave, and may recover his former Condition by the Right of Postliminy. Edition: current; Page: [1247] And Paulus the Lawyer says, They that are taken4 by Pirates, or Robbers, continue free. To which we may add that of Ulpian,5 In civil Dissentions, tho' by them the State be often wounded, yet the Ruin of the State is not intended; they that embrace either Party, are not such Enemies as they who have the Right of taking Prisoners, and of Postliminy; therefore they who are taken and sold, and afterwards recover their Liberty, have no Occasion to petition the Prince for their Freedom, having never left it.
2. This only is to be observed, that under the Example of the People of Rome, whosoever has sovereign Power in a State is to be comprehended. He is an Enemy6 (says Cicero) Who has the Government of publick Affairs, a publick Council, a Treasury, the Right of commanding the People by Vertue of their Consent and Union, the Power of making Peace and War, when necessary.
II. A Distinction of a Nation doing unjustly from a Company of Pirates and Robbers.II. 1. Neither does1 a State immediately cease to be a State, tho' it commits some Acts of Injustice, even by publick Deliberation; nor is a Company of Pirates and Robbers to be reputed a State, tho' perhaps they may observe some kind of Equity among themselves,2 without which no Body can long subsist. For these latter are3 associated on the account of their Crimes; but the other, tho' sometimes not wholly guiltless, do associate for the peaceable Enjoyment of their own Rights, and to do Right to Foreigners, if not in all Things according to the Law of Nature, which Edition: current; Page: [1248] (as I have elsewherea shewed) among many Nations, is in part forgotten, at least according to the Agreements which they have made, and the Customs that are established. Thus the Commentator upon Thucydides observes;4 that whilst the Greeks allowed Piracy they abstained from Murders, from robbing in the Night and from stealing plowing Oxen. And Strabo5 informs us, that other Na-Edition: 1738; Page: [551]tions, tho' they lived by Piracy, upon their return Home, would send to the Owners, that if they would they might redeem their Goods at a moderate Price; to which we may refer that of Homer Odyss. &. 14.
2. But in Morals, the principal Part gives form to the Whole: And as Cicero7 well observed in his 5th Book De Finibus, Because it contains the greatest Parts, and spreads furthest, the Whole is named from it; to which agrees that of Galen, ἀπὸ τον̂ πλεονεκτον̂τος ἐν τῃ κράσει γίνονται αἱ προσηγορίαι, In Mixtures the Denomination is always taken from that which is the greatest Portion. The same Author often calls them ὀνομαζόμενα κατ' ἐπικράτησιν, named from the most powerful. Wherefore8 Cicero was too loose in his Expression, in saying, when a King is unjust, the Nobles unjust, or the People, it is not properly a corrupt State, but none at all. Which St. Augustine9 thus corrects, Neither can I therefore say that a People is no People, or the State no State, as long as there remains a Multitude of reasonable Creatures associated for the Defence of the Things that they love. A sick Body is yet a Body. And a State, however distempered, is still a State, as long as it has Laws and Judgments, and other Edition: current; Page: [1250] Means necessary for Natives, and Strangers, to preserve, or recover their just Rights.10 Dion Chrysostome is more in the right, who says that the Law (especially that of Nations) is in a State, as the Soul in a human Body,11 for that being taken away it ceases to be a State.12 Aristides in his Exhortation to the Rhodians unto Peace, shews that many good Laws may be consistent even withEdition: 1738; Page: [552] Tyranny. And13 Aristotle says, that tho' in an Aristocracy, or Democracy, the Nobles or People govern ill, yet that does not immediately destroy the Civil Government, but only renders it vitious. Let us illustrate this by Examples.
3. We have already declared the Opinion of Ulpian,14 that they who are taken by Robbers do not become their Slaves; but he says, those taken by the Germans lost their Freedom. Yet among the Germans, whatever Robberies were committed without the Bounds of any State, were not blamed; they are15 Caesar's own Words. And Tacitus tells us, that the Venedi16 robbed in the Woods and Mountains between the Peucini and Fenni. He also observes, that the Catti,17 a noble People of Germany, practised Robberies. And again the Garamentes,18 a Nation abounding Edition: current; Page: [1251] in Robbers, and yet a Nation. The Illyrians,19 without Distinction, used to rob by Sea, yet a Triumph was granted to their Conqueror, tho' it was denied to Pompey20 over the Pirates. So great a Difference is there between a Nation, however wicked, and those who, not making a Body of People, are confederated only to do Mischief.
III. Yet sometimes there happens a Change.III. Yet sometimes there may happen a Change, not only in particular Persons, as in1 Jeptha,2 Arsaces,3 Viriatus, who from Captains of Thieves, became lawful Commanders;4 but also in Companies; as when a Company of Robbers leaving their wicked Practices, and following an honest Course of Life, become a civil Society. St. Augustine says thus of Robberies,5 If this Mischief by a great concourse of desperate Men should grow so great, that they should seize on certain Places, settle themselves in them, take Cities, and subdue Nations, it then assumes the Title of a Kingdom.Edition: current; Page: [1252]
IV. It is required in a solemn War, that he that makes it have a Sovereign Power; and how that is to be understood.IV. We have alreadya shewed who are they that have Sovereign Power, whence we may also gather, that he that hath it but in part, may for that Part make a just War;b much more they who are not Subjects,1 but unequally Confederates: As between the Romans and their Allies, (tho' upon unequal Terms) the Volscians, Latins, Spaniards and Carthaginians, every Thing that a War in form requires was observed, as we may learn from History.
V. And that it be solemnly denounced.V. But that War may be called just in the Sense under Consideration, it is not enough that it is made between Sovereigns, but (as we have heard before) it must be undertaken by publick Deliberation, and so1 that one of the Parties declare it to theEdition: 1738; Page: [553] other: Whence Ennius calls it published Battles.2 Cicero in his first Book of Offices observes, There is no Edition: current; Page: [1253] lawful War but what is made after redemanding what was due, or after a Declaration in form. The antient Writer quoted by Isidore is not so clear, That War is just which is made in consequence of a Declaration, either for the recovering our own, or for repulsing the Enemy. Livy3 says, a just War is that which is openly made, and by publick Deliberation. And having first declared, that the Acarnanians had wasted the Athenian Lands,4 says, That was the beginning of Disputes, but that afterwards they came to a War in form, decreed and declared by the States.
VI. In denouncing what is required by the Law of Nature, what by the Law of Nations is handled distinctly.VI. 1. For the better understanding of these and other Passages that treat of the denouncing of War, we must carefully distinguish what Things are due by the Law of Nature, and what are not by the Law of Nature, and yet are honest; and also what Things are required by the Law of Nations to obtain the proper Effects of the Right of Nations; and lastly, what Things do arise from the peculiar Customs of some People.
By the Law of Nature, where either Force is repelled by Force, or Punishment demanded of him who is the Offender, there no denouncing of War is required. And this is what Sthenelaidas the Ephorus pleads in1 Thucydides, οὐ δίκας οὐδὲ λόγοις διακριτέα μὴ λόγω καὶ αὐτοὺς Edition: current; Page: [1254] βλαπτομένους, There is no disputing with Words and Arguments when we have been injured by them otherwise than in Words. And Latinus observes in Dionysius Halicarnassensis,2 τὸν ἄρχοντα πολέμου πα̂ς ὁ προπαθὼν ἀμύνεται, Whoever is attacked defends himself immediately against the Aggressor. And as3 Aeli-Edition: 1738; Page: [554] an out of Plato,4 That War made to beat away an Invader needs no other Herald but Nature itself. Hence Dion Chrysostome observes,5 πόλεμοι ὡς τὸ πλει̑στον ἀκήρυκτοι γίγνονται, Many Wars are made without denouncing. Neither does6 Livy blame Menippus, Antiochus's General, for any Thing, but that he had killed certain Romans, when no War had been denounced, and when they had heard nothing of the drawing of a Sword, or any Bloodshed; thereby implying, that if either of these had been done, it might have justified Edition: current; Page: [1255] the Fact. Neither does the Law of Nature require, that the right Owner,7 being to recover his own, should declare War.
2. But as often as one Thing is to be taken for another, or the Goods of a Debtor to be seized for a Debt, a Demand is requisite; much more when the Goods of Subjects are to be seized for the Debt of the Prince, whereby it may appear we have no other way to recover our own, or our Debt (but by War). For the Right which we have in those Things is not principal, but secondary, and substituted, as we have declareda elsewhere. So a Sovereign ought not to be attacked, either for the Debts or Offences of his Subjects, till Satisfaction has been demanded, the Denial of which puts him in the Wrong, so that he may be deemed to be the Cause of the Damage done to Foreigners, or to render himself culpable towards them, according to what we haveb treated of before.
But where the Law of Nature does not require such a Demand to be made,c yet it may be done honestly8 and commendably, to the End that the Offender may forbear, if he will, to give Offence, or that that already given may be atoned for by Repentance and Satisfaction; according Edition: current; Page: [1256] to those Rules which I haved already set down, for the preventing the Calamities of War; to which we may apply,9
And the Command which10 GOD gave thee Hebrews, to offer Peace to a City be-Edition: 1738; Page: [555]fore they fought against it, was peculiarly given to that People; and therefore by some ill confounded with the Law11 of Nations. Nor was that Peace offered as absolute, but upon Condition of Submission and Tribute. When Cyrus had marched into Armenia, he forbore Acts of Hostility, till he had sent Embassadors to the King, to demand the Tribute and Troops he owed, by Vertue of a Treaty, νομίζων ϕιλικώτερον εἰ̂ναι οὕτως ἢ μὴ προειπόντα πορεύεσθαι, esteeming it more humane to act thus, than to go on without any Declaration, as Xenophon12 speaks in his History of that Action. But by the Law of Nations, a publick Denunciation is required in all13 Cases, as to those peculiar Effects of a just War, if not on both Sides, yet on one.Edition: current; Page: [1257]
VII. War denounced sometimes conditionally, and sometimes absolutely.VII. 1. But this Denunciation is either conditional or absolute. Conditional, when Restitution is demanded at the same Time; but the Fecial (or Herald) Law1 under the Notion of Things demanded, comprehends not only a Vindication of due by Right of Property, but also the Prosecution of it, whether due upon a civil or criminal Account, as2 Servius well expounds it. Hence we meet in the form3 of it these Words, to be restored, to be repaired, to be delivered up; where to be delivered up (as we have saida in another Place) is to be understood, unless they from whom they are demanded, should chuse rather to punish the Offenders themselves. Pliny declares, that this reclaiming of Things was called4 Clarigatio Edition: current; Page: [1258] (because the Demand was made clearly and with a loud Voice.) A conditional denouncing of War is thus in5 Livy, They are resolved with all their Power to revenge that Injury, unless redressed by the Offender. And in6 Tacitus, Unless they punish the Malefactors, they will put to Death without Distinction. And of this Kind we have an old Precedent in Euripides, where Theseus orders his Heralds to tell Creon the Theban,Edition: 1738; Page: [556]
Statius relating the same says,
Polybius calls this ῥύσια καταγγέλλειν, The old Romans, condicere. A pure (or absolute) Denunciation, is what is especially called an Indiction (or Proclamation) when either the other Party has begun the War (and this Isidoreb calls a War to repel an Enemy) or he himself has done something that deservesc to be punished.
2. Sometimes a pure (and absolute) Denunciation follows a conditional one, tho' not necessarily, but over and above. Hence comes the usual8 Form, I call the Gods to Witness that Nation is unjust, and will not Edition: current; Page: [1260] Edition: current; Page: [1261] render what is right. And another of which Things, Differences and Causes, the Declaration has been made by the King at Arms of the People of Rome, to the King at Arms of the antient Latins, and to the People of the antient Latium, they have neither paid, given, nor done those Things they ought to have paid, given, or done; wherefore I judge, agree and declare, that Satisfaction be sought by a fair and just War. To which we will add a third Form, Because the antient Latin People have injured the People of Rome, and failed in their Duty, and because the People of Rome have commanded to make War against the antient Latins, and the Senate of the People of Rome have judged, agreed and resolved to declare War against the antient Latins; therefore I and the People of Rome do denounce and make War against the antient Latins. And that, in this Case, a Declaration of War was not thought absolutely necessary, does appear fromEdition: 1738; Page: [553] hence, that it was sufficient, if it was but proclaimed at the next Garrison. As the Heralds in the Case of9 Philip of Macedon, and afterwards of Antiochus,10 gave their Opinion; whereas the first Time it was necessary to declare War to the Person himself, against whom it was intended to take up Arms. Nay, the War against Pyrrhus was denounced only to one of his Soldiers; and that in the Flaminian Cirque, where that Soldier was ordered to purchase a Place, for Form sake, as11 Servius observes on the 9th of the Aeneid.
3. Another Thing which shews that a pure and simple Declaration after a conditional one is needless, is that a Denunciation of War is often Edition: current; Page: [1262] made by both Parties, as the Peloponnesian12 War by the Corcyreans and Corinthians, when the denouncing of it by one would have been sufficient.
VIII. In denouncing War, what belongs to the Civil Law and not to the Law of Nations.VIII. We must not confound with the Rules which properly belong to the Law of Nations, the Use of the Caduceum1 established amongst the Edition: current; Page: [1263] Greeks;Edition: 1738; Page: [554] that2 of Vervein, and the Spearmade3 of Cornil, amongst the Romans, who took it from the Aequicolae; the solemn Renunciation4 of all Friendship and Alliance, if ever there had been any, with him against whom War was declared; a Renunciation made after the Term of thirty Days, in which he was allowed to restore what had been demanded; the Ceremony5 of throwing once more a Spear into the Enemy's Ground; and such other Things which proceed merely from the peculiar Customs of some Nations. For6 Arnobius tells us, that many Edition: current; Page: [1264] of these Formalities were left off in his Time, and some disused, even in7 Varro's Days.Edition: 1738; Page: [555] The third Punick War8 was both denounced, and commenced at the same Time. And9 Maecenas, in Dion, will have some of these Ceremonies to be peculiar to popular States only.Edition: current; Page: [1265]
IX. War denounced against a Prince, is denounced also against his Subjects, and all his Adherents.IX. War denounced against a Sovereign, is presumed at the same Time to be denounced, not only against all his Subjects, but also others who shall join him, and who ought to be considered, in Regard to him, only as an Accessory. And this our modern Lawyers mean, when they say,1 A Prince being defied, all his Adherents are defied. For to denounce War they call diffidare, to bid Defiance, which is to be understood of that very War which is made upon him against whom it is proclaimed. Wherefore, when the Romans had declared War against Antiochus, they would not do it separately against the Aetolians, because they openly sided with him.2 The Heralds replied, The Aetolians have voluntarily proclaimed the War against themselves.
X. But not by themselves considered, this illustrated by Examples.X. But that War being ended, if we are to attack any other Prince, or People, for having assisted in the War, we ought to denounce War anew, to obtain the Effects of a just War by the Law of Nations. For they are not then looked on as Accessories, but as Principals;1 wherefore it is well observed, that the War of Manlius against the Gallo-Greeks, and of Caesar against2 Ariovistus, were not3Edition: 1738; Page: [556] just by the Law of Nations: For Edition: current; Page: [1266] they were not now Accessories of another War, but attacked as Principals, on which Account, as a Denunciation of War was requisite by the Law of Nations, so a new Decree of the Roman People was necessary by the Laws of Rome.4 If the Consent of the People to make War against Antiochus was desired in this Form, Is it your Will and Pleasure that War be made against Antiochus, and his Adherents? Which was also observed in the5 Decree against King Perseus: It ought to be understood thus, as long as that War should continue against those two Kings, and their Adherents.Edition: current; Page: [1267]
XI. The Reason why Denunciation is requisite to some Effects of War.XI. The Reason why a solemn Proclamation was required unto such a War as by the Law of Nations is called just, was not (asa some imagine) to shew that they would do nothing in Secret, or by Deceit; for this Motive would not tend so much to establish any Right as to distinguish them by an extraordinary Valour and Generosity. As some Nations1 (we read) have appointed both the Time and Place of Battle. But that it might manifestly appear, that the War is not made by a private Authority, but by the2 Consent of both Nations, or of their Sovereigns. For hence Edition: current; Page: [1268] arise certain peculiar Effects, which in a War against Robbers, or a WarEdition: 1738; Page: [557] made by a Prince against his own Subjects, will not be allowed. Therefore3 Seneca distinguished Wars denounced against Neighbours from Civil Wars.
XII. That those Effects are not to be found in other Wars.XII. Now, asa some observe, and by Examples teach, that even in such Wars as these, whatever is taken becomes the Captor's,1 it is true but only on one Side, and that too by the Law of Nature; and not by the voluntary Law of Nations, which only provides for the Interest of Nations, not of those who are either no Nation, or but Part of one. They are also mistaken thatb think a War, undertaken in Defence of our Persons or Goods, needs no Denunciation.2 For it is absolutely necessary, indeed not simply, but to obtain the Effects proper to a just War, as we have already mentioned, and shall more fully explain by and by.
XIII. Whether a War may be made as soon as denounced.XIII. Neither is that true, that War cannot justly be made as soon as it is proclaimed, which Cyrus did against the Armenians, and the Romans against the Carthaginians, as I saida before. For by the Law of Nations, a Denunciation1 requires no Time to be allowed after it; but it may Edition: current; Page: [1269] happen, that by a natural Right some Time may be required from the Quality of the Business, as if Restitution be demanded, or Punishment required against an Offender, and not yet denied; for then convenient Time is to be granted for the performing it.
XIV. Whether against him that has violated the Right of Embassadors a War may be made, tho' not denounced.XIV. Nay, tho' the Rights of Embassadors should be violated, it will not thence follow, that there is no Need of Denunciation to obtain those Effects proper to a just War; but it will be sufficient if it be done the safest Way it can, that is, by Letters: As it is usual, in Law, to give a Summons or Intimation, in Places that are not safe.
I. The Effects of a solemn War generally explained.I. Servius upon this Verse of Virgil's,
Deriving the Fecial (or Herald) Law from Ancus Marcius, who had borrowed it himself from the Aequicolae, says thus,2 When Men or Cattle were taken from the Romans by any other Nations, the Pater Patratus (King at Arms) with some other Heralds, whose Office it was also to make Treaties of Alliance, went to the Borders of that Nation, and standing there, with a loud Voice proclaimed the Cause of the War; and if they would not restore the Things taken, or deliver up the Offender, (within thirty Days) he threw a Javelin into their Territories, which was theEdition: 1738; Page: [558] Beginning of Hostilities, and then it was lawful to plunder, as is usual in War. But he had before said, that The Antients by3 plundering, (Res rapere) understood the damaging what belonged to the Enemy, tho' nothing be taken from him: And by restoring what was redemanded (Res reddere) they meant all Manner Edition: current; Page: [1271] of Satisfaction for the Injury done. Whence we learn, that a War solemnly denounced between two Nations, or their Sovereigns,4 has some peculiar Effects, which do not follow from the Nature of the War itself: Which is very agreeable to what we have alreadya quoted from the Roman Lawyers.
II. The Word Lawful distinguished into what may be done with Impunity, tho' not without a Crime, and what is not criminal, tho' it were an Act of Virtue to let it alone; with the Addition of several Examples.II. 1. But we must observe, that this Word Licebit, will be lawful, in Virgil, is capable of a double Meaning. For sometimes that is said to be lawful which is altogether just and honest, tho' perhaps, some other Thing may be more commendably done, as that of the Apostle St. Paul, Πάντα μοὶ ἔξεστιν, ἀλλ' οὐ πάντα συμϕέρει, All Things (of the same Nature with those he had begun to speak of,1 and of which he was going to speak further) are lawful for me, but all Things are not expedient, 1 Cor. vi. 12. Also to marry is lawful, but to abstain from2 Marriage with apious Edition: current; Page: [1272] Intent is more laudable, as St. Augustinea argues to Pollentius, out of the same Apostle. To marry a second Time is likewise lawful; but to marry but once is more laudable, as3 Clemens Alexandrinus rightly decides the Question. A Christian Husband may lawfully put away a Heathen Wife, as Saint Augustineb allows (which, with what Circumstances it may be proved, is not our Business here to dispute) but yet he may keep her. Therefore he adds,4 Both are equally lawful by the Rules of Justice, which our Saviour hath given us, for he hath prohibited neither of them, but both are not equally expedient. Ulpian says of a Trader, who was permitted, by the Roman Law to pour out the Wine, if the Buyer did not come to fetch it at the Time appointed,5 Tho' he may do it, yet if he did it not he is more to be commended.Edition: 1738; Page: [559]
2. This6 Word Licere, to be lawful, may be taken for that which is not punishable by human Laws, and yet is not consistent with Piety, or Edition: current; Page: [1273] the Rules of Morality. Thus, in many Countries, Fornication is allowed. Among the7 Lacedemonians and Aegyptians, Theft was lawful. We read in Quintilian,8 There are some Things not commendable in their own Nature, yet tolerated by the Law, as by that of the Twelve Tables, the Body of the Debtor might be divided amongst the Creditors. Indeed this Acceptation of the Word Licere, to be lawful, is not very proper,9 as Cicero observes in the fifth of his Tusculan Questions. Speaking of Cinna, On the contrary I think him miserable, not only because he did such Things, but because he so managed, that he might lawfully do them, tho' it is not lawful for any Man to do ill, but we are misled by the Error of Speech, when we say that is lawful which is only allowed. But yet it is very common, as when the same Cicero, in Behalf of Rabirius Posthumus thus addresses the Judges,10 Ye ought to consider what is suitable to be done, not what you may do by Strictness of Law, for if you regard what is strictly lawful, you may put to Death whom you please. Thus it is said,11 it is lawful for Kings to do what they please, because they are ἀνευπεύθυνοι, exempted from Punishment amongst Men, as we have saidc elsewhere. But Claudian well advises a Prince or Emperor, when he says,Edition: current; Page: [1274]
And13 Musonius blames those Princes, Μὴ τὸ, καθήκει μοι, λέγειν μεμεληκότας, ἀλλὰ τὸ ἔξεστί μοι, Who say thus I can do, rather than thus I should do.
3. And in this Sensewe find Licet, it is lawful, and Oportet, it be hoveth, often opposed to each other, as by14 Seneca the Father, in his Controversies. And in Ammianus Marcellinus,15 Some Things are not fit to be done, tho' they may be lawfully done. And Pliny,16 in his Epistles, We should avoid Things that are dishonest, not because they are unlawful, but shameful. And Cicero,17 in his Oration for Balbus, Some Things are not fit to be done, tho' lawful. And for Milo,18 he refers to natural Right what is just or innocent, and to the Laws what is permitted.Edition: 1738; Page: [560] So Quintilian19 the Father, in one of his Declamations tells us: It is one Thing to have a regard to the Laws, and another to consider what Justice demands.Edition: current; Page: [1275]
III. The Effects of a solemn War generally considered, refer to Lawfulness with Impunity.III. Therefore in this Sense it is lawful for one Enemy to hurt another, both in Person and Goods, not only for him that makes War on a just Account, and does it within those Bounds which are prescribed by the Law of Nature, as we have saida in the beginning of this Book, but on both Sides, and without Distinction; so that he cannot be punished as a Murderer, or a Thief, tho' he be taken in another Prince's Dominion, neither can any other make War upon him barely upon this Account. And in this Sense we are to take Sallust,1 By the Laws of War all Things are lawful to the Conqueror.
IV. Why such Effects were introduced.IV. The1 Reason why this was established by Nations, is because when two States are engaged in War, it would be dangerous for any other to Edition: current; Page: [1276] pronounce on the Justice of their Cause, for by that Means that State might quickly be involved in a War with other People, as the2 Inhabitants of Marseilles argued in the Cause ofEdition: 1738; Page: [561] Caesar and Pompey; that it did not belong to them, nor did their Forces permit them to determine, which had the juster Cause. Besides, even in a just War it is Edition: current; Page: [1277] very hard by any outward Tokens to judge, which is the just Measure of defending ourselves, of recovering our own, or of exacting Punishment, so that it is far better to leave it to the Conscience of the Persons engaged in War to determine these Things among themselves, than to appeal to the Arbitration of others. The3 Achaeans in Livy thus addressed the Senate, How should what had been acted by the Right of War, now come into Debate? Besides this Permission or Impunity, there is another Effect, viz. the Right of appropriating to ourselves what we take in a solemn War, of which we shall treat hereafter.
V. Proofs of these Effects.V. 1. But that Licence which a just War gives to an Enemy to hurt another (which we have begun to treat of) extends first to his Person, of which we have many Testimonies in approved Authors. There is a great Saying of1 Euripides, which had passed into a Proverb amongst the Greeks,
Therefore the Custom of the old Greeks was, not to wash, drink, much less to perform any Acts of a religious Worship with him that was a Homicide (that is,2 had killed a Man out of War) but it was lawful to do it with him that in War had slain his Enemy; and frequently to kill Edition: current; Page: [1278] is called the Right of War. And Marcellus declares in Livy,3 What so ever I did among the Enemies, the Right of War defends. So does Alcon to the Saguntines in the same Author,4 But I think this is rather to be endured, than that you should be all put to the Sword; and suffer your Wives and Children to be dragged about before your Faces, by the Right of War. And the same Livy in another Place, relating the general Massacre of the Astapenses,5 adds, that it was done by the Right of War. And Cicero pleads thus for Deiotarus,6 But how could he be suspected as your Enemy, who cannot but remember, that when you might have adjudged him to die by the Law of Arms, you made both him and his Son Kings. And for Marcellus,7 For when by the Right of that Victory we might have been all put to Death, we were preserved by your Clemency. And Caesar8 tells the Haedui, That he had out of his Mercy preserved them, whom by the Right of War he might have slain. And Josephus9 in his Jewish War, καλὸν ἐν πολέμῳ θνήσκειν, ἀλλὰ πολέμου νόμῳ, τον̂τ' ῎στιν ὑπὸτω̂ν κρατούντων, calls it honourable to die in War, but by the Right of War, that is by the Hands of the Conqueror. And so Statius,10Edition: 1738; Page: [562]Edition: current; Page: [1279]
2. Yet we must observe, that when these Authors write thus, they do not mean a Permission that renders the Action of killing the Enemy entirely innocent, but an Impunity, such as I have described, as appears from other Places. Tacitus11 said, In Time of Peace every one is treated according to his Desert, but in War the Guilty and Innocent fall alike. And in another Place,12 Neither would the common Right of Men permit them to reward so unnatural a Murder, nor the Law of Arms to punish it. Neither is the Right of War to be otherwise taken, where Livy13 mentions, that the Greeks spared Aeneas, and Antenor, because they had been always for Peace. And Seneca in his Tragedy of Troas.
And in his Epistles,14 Those Things, which would be punished with Death, had they been done in secret and by private Authority, are commended, when done by Generals of Armies. And St. Cyprian,15 It is a Crime when a private Person is guilty of Homicide, but when it is done by publick Authority it is called a Vertue; Crimes acquire the Right of Impunity, not because Edition: current; Page: [1280] they do but little hurt, but because the Cruelty of them is carried to a great Excess. And a little farther, the Laws connive at Sin, and that is esteemed lawful, which is authorised by the State. Thus Lactantius says,16 that the Romans did lawfully injure others; and in the same Sense Lucan,17 Crimes were authorised.
VI. All that are found among Enemies may be killed or hurt.VI. But this Right of Licence is of a large Extent, for it reaches not only those who are actually in Arms, and the Subjects of the Prince engaged in War, but also all those who reside within his Territories; as may appear from that form in Livy.a Let him, and all that live within his Country, be our Enemies. And no wonder, since we may apprehend Damage from them, which in a general and uninterrupted War is enough to justify the Right here spoken of, otherwise than in Reprisals, which, as I have said, [[b]] were first introduced after the manner of Taxes laid for the Payment of publick Debts. Wherefore we are not to be surprised, if, as Baldusc observes, this Licence in War be much greater, than that in Reprisals. And without doubt Strangers, that come into an Enemy's Country after a War is proclaimed, and begun, are liable to be treated as Enemies.
VII. What if they came thither before the War.VII. But they who went thither before the War, are by the Law of Nations allowed1 a reasonable Time to depart, which if they do not make2Edition: 1738; Page: [563] Use of they are accounted Enemies. For thus the Corcyreans, Edition: current; Page: [1281] before they laid Siege to Epidamnus, gave Notice to all3 Strangers to depart, or else they should be reputed Enemies.
VIII. The Subjects of Enemies are every where to be attacked, unless in the Territories of a neutral State.VIII. 1. But such as are really Subjects of the Enemy, that is,1 from a permanent Cause, if we respect only their Persons, may in all Places be assaulted; because when War is proclaimed against a Nation, it is at the same Time proclaimed against all of that Nation, as we have shewna above, in the Form of Denunciation. So in the Decree against King Philip, They did will and command, that War should be denounced against him, and the Macedonians under his Dominion. And he that is an Enemy may by the Law of Nations, be assaulted every where; according to Euripides,2
And in Marcian the Lawyer,3 Deserters, where-ever they are found, may be killed as Enemies.
2. They may then lawfully be killed in their own Country, in the Enemies Country, in a Country that belongs to no Body, or on the Sea. But that we may not kill or hurt them in a neutral Country, proceeds not from any Privilege attached to their Persons,4 but from the Right of that Prince in whose Dominions they are. For all civil Societies may ordain, that no Violence be offered to any in their Territories, but by proceeding in a judicial Way, as we have provedb out of Euripides,
But5 in Courts of Justice, the Merit of the Person is considered, and this promiscuous Licence of hurting each other ceases, which I have said was granted among Enemies in Time of War.6 Livy relates that seven Carthaginian Galliesc rode inEdition: 1738; Page: [564] a Port belonging to Syphax, who at that Time was in Peace both with the Carthaginians and Romans, and that Scipio came that way with twod Gallies; these might have been seized by the Carthaginians before they had entered the Port, but being forced by a strong Wind into the Harbour, before the Carthaginians could weigh Anchor, they durst not assault them in the King's Haven.Edition: current; Page: [1283]
IX. This Right of hurting extends to Women and Children.IX. 1. But to return to the Point in Hand, how far this Licence extends itself, will hence appear, in that the Slaughter of Infants and Women is allowed, and included by the Right of War. I will not to this refer the slaying of the Women and Children of Heshbon by the Hebrews, Deut. ii. 34. nor that they were commanded to do the like to the Canaanites, Deut. xx. 16. and other Nations1 who were in the same Case2 with them. It was the special Act of GOD, whose Right over Men is far greater, than that of Men over Beasts, as we havee proved elsewhere. That which is more proper to testify the common Custom of Nations, is that of the Psalmist, Psal. cxxxvii. 9. Blessed shall he be, that taketh and dasheth thy little ones against the Stones. Like to that of Homer,3
2. The Thracians of old having taken the City My calessus, put Women and Children to the Sword, as Thucydidesf informs us. Ariang relates the same of the Macedonians, when they took Thebes; and so did the Romans at Ilurgis a City of Spain; ἔκτειναν ὁμαλω̂ς καὶ παιδιὰ καὶ Edition: current; Page: [1284] γυναι̑κας, They slew Women and Children without Distinction, which are the Words ofh Appian. Germanicus Caesar is reported by4 Tacitus, to have wasted the Villages of the Marsi, (a People of Germany) with Fire and Sword; adding, Neither Sex nor Age found any Pity. And the Emperor Titus5 exposed the Women and Children of the Jews to be devoured by wild Beasts in the publick Shews; and yet these two Princes were never esteemed to be of a cruel Nature: Whence it appears how much that Inhumanity was turned intoEdition: 1738; Page: [565]Custom. Now on der the nif old Men were also killed, as Priam by Pyrrhus. Aeneid. ii. 550. & seq.
X. Yea, and to Captives, and that at any Time.X. 1. Neither were Prisoners exempted from this Licence [[1]]; Pyrrhus in Seneca, according to the Custom at that Time, pleads thus:Edition: current; Page: [1285]
In the Ciris of Virgil, this Licence is called the Law of War, and that even with respect to captive Women; for thus argues Scylla:
The Passage of Seneca just mentioned speaks of a Woman, namely Polyxena, who was to be killed. Horace advises,
For he supposes it lawful to kill him. And Donatus derives the Word Servus (a Slave) from a Verb that signifies to preserve,5 Because, says he, a Slave is a Person whose Life is preserved, which by the Right of War ought to have been taken away. Ought, is an improper Expression, for it was lawful: So the Prisoners taken at Epidamnus were killed by the Corcyreans Edition: current; Page: [1286] as Thucydidesa relates, and 5000 Prisoners byb Hannibal.6 And in Hirtius, a Caesarean Captain in the African War thus addresses Scipio,7 I return you Thanks, that you have been pleased to engage your Word for my Life and Safety, being Prisoner by the Right of War.
2. Nor is this Licence of killing our Captives confined to any Time, by the Right of Nations, but it is restrained more or less in some Places, by the particular Laws of each State.
XI. Yea, even such as are willing to yield, if not accepted of.XI. We meet also with many Examples of Suppliants that have been slain, as by Achilles in1 Homer, of Mago, and Turnus in2 Virgil; which are not only recorded, but also justified by the Right of War. St. Augustine commending the Goths, for sparing Suppliants, and those that had fled for Refuge to Churches, acknowledges,3 That which by the Right of War they might do, they thought unlawful for them to do. Neither are they always received to Mercy, that beg it; witnessEdition: 1738; Page: [566] the Greeks4 who served the Persians at the Battle of the Granicus. And the Uspenses in Tacitus5 begging Quarter, which (he says) the Conquerors denied, but let them die by the Law of Arms. Observe here also the Right of War confessed by that Author.Edition: current; Page: [1287]
XII. Yea, and to such as yield without Conditions.XII. Neither do they always find Mercy, thata surrender without any Condition, but are often slain, as the Princes of Pometia1 by the Romans, the Samnites2 by Sylla, theb Numidians, andc Vercingetorix by Caesar. Nay, it was almost the constant3 Custom of the Romans on the Days of their Triumph to put to Death the Commanders of the Enemies, as Cicero tells us in his fifth Oration against Verres. Livy in his 28th Book, and elsewhere. Tacitus in his 12th Annal, and many others. And the same Tacitus informs us, that Galba4 caused the tenth Man to be killed of those, whom upon Submission he had received to Mercy; and Caecina upon the Surrender of Aventicum, caused Julius Alpinus to be slain, as the chief Promoter of the War; he left the rest to either the Mercy, or Cruelty of Vitellius.Edition: current; Page: [1288]
XIII. This Right not to be referred to any other Cause, as Retaliation, Obstinacy of Defence, &c.XIII. 1.a Historians sometimes set down the Reason of this Cruelty, of the Enemies, especially to Captives, and Suppliants, as either by way of Retaliation, or because of an obstinate Defence. But these are rather Motives, than justifying Causes, as I have distinguished in another Place. For just Retaliation (properly so called) is to be executed only upon the Person of the Offender (as has been already said,b when we treated of the Communication of Punishment.) But on the contrary, in War this Right of Retaliation is often exercised upon the Innocent. This Custom is thus described by1 Diodorus Siculus, The Chance of War being equal on both Sides, neither Party can be ignorant, that if they be vanquished, they must suffer the same themselves, which they intend to their Enemies. And in the same Author, Philomelus the Phocian General, Diverted the Enemies from an insolent and cruel Revenge, by treating in the same manner such of them as fell into his Hands.
2. But there is no Man will judge an obstinate Adherence to our Party punishable, as the2 Neapolitans alledged to Belisarius in Procopius; especially if we were engaged therein either by a natural Obligation, or by an honest and deliberate Choice. It is so far from being a Crime, that on the contrary it is reckoned one ifEdition: 1738; Page: [567] a Man quits his Post, especially by the Laws of the antient Roman Discipline; for in this Case they rarely allowed any Excuse, were the Fear or Danger never so great.3 Livy says, to desert a Post was capital among the Romans. Every one therefore may use this Rigour to his own Advantage, and this Rigour is justified before Men, by that Right of Nations, which we now treat of.Edition: current; Page: [1289]
XIV. It extends also to Hostages.XIV. This Right also reaches to Hostages, nor to them only, who freely give themselves as Pledges by a Sort of Agreement, but also those who are delivered up by others. 250 Hostages were slain by thea Thessalians, and 300 of the Volsci Aurunci by theb Romans. And we must observe, that sometimes Children were given as Hostages, as we may learn from the1 Parthians, and fromc Simon Macchabaeus, and sometimes Women, as by the Romansd in the Time of Porsena, and by the2 Germans in Tacitus.Edition: current; Page: [1290]
XV. By the Law of Nations it is forbidden to kill any by Poison.XV. 1. As the Law of Nations permits many Things, in the Sense we have explained, which are forbid by the Law of Nature, so it prohibits some Things allowed by this Law of Nature. For if we respect the Law of Nature, when it is permitted to kill a Man, it signifies not much, whether we do it by the Sword or Poison. I say the Law of Nature, for indeed, it is more generous to attempt another Man's Life in such a manner, as to give him an Opportunity of defending himself, but we are under no Obligation to use such Generosity towards those who deserve to die. But the Law of Nations, if not of all, yet of the more civilized, allows not the taking the Life of an Enemy, by Poison; which Custom1 was established for a general Benefit, lest Dangers should be increased too much, since Wars were become so frequent. And it is probable, that it was first introduced by Kings. For if their Life be more secure, than that of others, when attacked only by Arms; it is, on the other Hand, more in danger of Poison, unless protected by a regard to some Sort of Law,2 and the fear of Disgrace and Infamy.Edition: 1738; Page: [568]
2. Livy speaking of Perseus,3 calls it a clandestine Villany. Claudian of the Offer of Pyrrhus's Physician to poison him rejected by Fabricius, Edition: current; Page: [1291] 4calls it an abominable Action; and Cicero5 hinting at the same Story terms it a Crime. It concerns the common Interest of Nations, that no such Examples be given,6 say the Roman Consuls, in their Letter to Pyrrhus, which Gellius recites out of Cl. Quadrigarius; and Val. Maximus7 observes, Wars should be waged by Arms, not by Poison. And Tacitus8 relates, that when the Prince of the Catti offered to poison Arminius, Tiberius refused it, imitating by that glorious Action the Conduct of antient Generals. Whereforea they that hold it lawful to poison an Enemy (as Baldus9 did upon the Authority of Vegetius) do regard the mere Law of Nature, but over-look that Law which is established by the Consent of Nations.
XVI. Or to empoison Waters or Weapons.XVI. 1. Somewhat different from this manner of poisoning (as having something of open Force in it) is to poison the Heads of Darts, and thereby force Death a double way, which Ovid says1 was much practised Edition: current; Page: [1292] by the Getes,2 Lucan by the Parthians, and Silius by some of the3 Africans, and Claudian particularly by the4 Ethiopians. But this also is5 contrary to the Law of Nations, tho' not of all, yet of the European, and others civilized like them, which is rightly observed by Johannes Salisberiensis,6 whose Words are these: Neither do I find the Use of Poison allowed by any Law, tho' sometimes practised among Infidels. Therefore Silius calls it,7 to render Arms infamous by Poison.
2. So also the empoisoning of Springs (which cannot be concealed, or at least not long) Florus declares to be contrary not only to the Custom of the antient Romans, but also to8 the Laws of the Gods; for the Antients frequently ascribed to the Divinity the Rules of the Law of Nations, as I have elsewhere observed; neither should it seem strange, that Edition: current; Page: [1293] there are such tacit Agreements among Nations, in order to lessen the Dangers that attend Wars, when of old it was agreed between theEdition: 1738; Page: [569] Chalcidians9 and Eretrians during the War, Μὴ χρη̂σθαι τηλεβόλοις, Not to make use of Darts.
XVII. But not any other ways to corrupt the Waters.XVII. But it is not the same, when Waters are1 (without Poison) so corrupted,2 that they cannot be drunk, which Solon, and the3 Amphictyones approved against the Barbarians. Oppianus, of Fishing, declares it was commonly done in his Time; it being, in Effect, the same Thing as if the Current of a Rivera were turned, orb The Veins of a Spring cut off, which, by the Law of Nature, and the general Consent of Nations, are allowed.
XVIII. Whether it be against the Law of Nations to employ Assassins, explained.XVIII. 1. But it is frequently disputed, whether the Law of Nations permits the sending one privately to kill an Enemy. But to explain this, we must distinguish between the Persons sent; whether they violate their Faith, given expressly or tacitly; as Subjects to their Prince, Vassals to Edition: current; Page: [1294] their Lord, Soldiers to their General, Suppliants, Strangers, or Deserters to them that have entertained them; or whether the Person sent owe no Faith to him against whom he is employed. Thus Pepin Father of1 Charlemagne, attended with only one of his Guard, passed the Rhine, and killed his Enemy in his own Chamber. Which2 Polybius relates was attempted by Theodotus, an Aetolian, against Ptolemy, King of Aegypt, in the same Manner, calling it, Ὀυκ ἄνανδρον τολμὴν, An Act of Bravery. Such was that famed Enterprizea of Q. Mutius Scaevola, which he himself thus defends, I being an Enemy would have killed an Enemy.3 Porsena himself acknowledged this to be an Act of great Valour.4 Valerius Maximus calls it, A commendable and gallant Resolution; and Cicero5 praises it in his Oration for P. Sextius.
2. For to kill an Enemy any where is allowed, both by the Law of Nature and of Nations (as I have said already), neither is it of any Concern, how many or how few they be who kill or are killed. 600 Lacedemonians with Leonidasb marched through the Enemy's Camp to the King's (Xerxes) Pavilion;* The same might have been done by fewer. There were but a few that circumvented Marcellusc the Consul, and slew him; and but a few had almost killed Petilius Cercalisd in his Bed.6 St. Ambrose Edition: current; Page: [1295] brose commends Eleazar, that assaulted a mighty Elephant,Edition: 1738; Page: [570] higher than all the Rest, supposing the King had sat upon it. Neither are they only that make these Attempts, but also they that employ them, excusable by the Law of Nations.e Those antient Roman Senators, such religious Observers of the Laws of War, were esteemed the Authors of that gallant Attempt of Scaevola.
3. It is to no Purpose to object, that such Men, being taken, are commonly put to exquisite Torments; for that is not because they violate the Law of Nations, but because, by the same Law of Nations, any Thing done against an Enemy is lawful, and every one is more or less severe as he judges it proper for his Interest. For so are Spies used, yet it is held lawful, by the general Consent of Nations, to send such, as Moses did, and such was Joshua himself (Ἔθος τοὺς κατασκόπους κτείνειν, It is the Custom to kill Spies, said7 Appian) and that justly sometimes, by such as have manifestly a lawful Cause to make War, by others with Impunity, which the Law of Arms grants. But if there be anyf that will not make Use of such Service when offered, that is rather to be attributed to Magnanimity, and the Confidence of one's own Strength, than to an Opinion of its being unjust.
4. But the Case is otherwise of those Assassins who act treacherously, for they not only transgress the Law of Nations, but also those that employ them. For tho' in other Things, they that make Use of wicked Instruments against an Enemy, may be reputed guilty before GOD, yet not before Men, that is, they have not offended against the Law of Nations; because,
And, To deceive (Pliny9 says) according to the Custom of the Age, is Wisdom; yet this Custom does not reach to the killing an Enemy, for he that should thus make Use of another Man's Treachery, is held not only to10 offend against the Law ofEdition: 1738; Page: [571] Nature, but also of Nations. This is Edition: current; Page: [1297] Edition: current; Page: [1298] plain from what Alexander11 wrote to Darius, Ye wage impious Wars, and tho' you carry Arms, you set a Price upon your Enemies Heads. And again, You do not observe towards me12 the Law of Arms. And in another Place, I ought to persecute him to Death,13 not as a just Enemy, but as a Poisoner, and an Assassin. And to this we may refer that of Livy,14 concerning Perseus, He does not wage a just War like a Prince, but uses all base and clandestine Villainies, like Thieves and Poisoners. And Marcius Philippus, of the same Perseus,15 All which, how hateful they were to the Gods, he would find by Experience. And also Valerius Maximus, The Murder of Viriatus,16 had a double Perfidiousness, the one in his Friends, who killed him; the other in Q. Servilius Caepio, the Consul, who was the Author of it, by promising Impunity, and who thus bought the Victory, instead of gaining it by open Force.
5. Now the Reason why this is not allowed, as in other Cases, is what we gave before in the Case of Poison, to lessen the Dangers attending Edition: current; Page: [1299] those who are at War,Edition: 1738; Page: [572] especially Persons of the17 most distinguished Rank. Eumenes (in Justin) said, He could not believe,18 that any Commander would so desire to conquer, (viz. by hiring to kill his Enemy) as to set so bad an Example against himself. And in the same Author, when19 Bessus had assassinated Darius, it is said, It was not to be endured for Example's Sake, and that it was the common Cause of all Kings. And Oedipus, to justify the Killing of King Laius, says, in Sophocles,
And in Seneca, on the same Subject,
And the Roman Consuls, in their Letter to22 Pyrrhus, It concerns the common Interest of Nations, that we endeavour your Safety.
6. In a solemn War then, and among those who have a Right to denounce a solemn War, it is not allowed: But where there is no solemn War it is accounted lawful, by the same Law of Nations. So Tacitus23 Edition: current; Page: [1300] declares the Plot against the Life of Gannascus, was not dishonest, because he was a Traitor. Curtius said, the Treachery of Spitamenes24 to Bessus was the less odious, because no Perfidiousness seemed unjust against a Murderer of his Prince. Thus Treachery towards Robbers and Pirates, tho' it be not altogether blameless, yet is not punished amongst Nations, in Detestation of those against whom it is committed.
XIX. Whether Ravishing of Women be against the Law of Nations.XIX. 1. The Ravishing of Women is sometimes permitted in War, and sometimes not. They that permit it, respect only the Injury done to the Body of an Enemy, which by the Law of Arms they think should be subject to all Acts of Hostility. But others, with more Reason, look not to that Injury alone, but also to the Act of Brutality, which being neither necessary for the Security of those who commit it, nor proper for the Punishment of those against whom it is committed, should be as much punished in War as in Peace; and this last is the Law of Nations, if not all, yet of the most civilized. So Marcellus, before he took Syracuse, is recorded to have taken1 particular Care to preserve the Chastity, even of his Enemies. Scipio (in Livy) said it concerned his own Honour, and that of the People of Rome,2 that nothing reputed sacred, byEdition: 1738; Page: [573] the more civilized Nations, should be profaned by them (his Soldiers). Diodorus Siculus Edition: current; Page: [1301] culus complains of Agathocles's Soldiers,3 ον̂̔τε τη̂ς εἰ̂ς γυναι̑κας ὕβρεως καὶ παρανομίας ἀπέσχοντο, They did not abstain from that detestable Crime of violating the Chastity of Women. Aelian speaking of the victorious Sicyonians ravishing the Wives and Virgins of the Pellenaeans, exclaims,4 Ἀγριώτατα ταν̂τα ὠ̑ Θεοὶ Ἑλλήνοι, καὶ οὐδὲ ἐν βαβάροις καλὰ κατάγε τη̂ν ἐμὴν μνείαν, These, (O ye Gods of Greece!) are Acts so cruel and abominable, as were never practised among the Barbarians, as far as I can remember.
2. And certainly, this should be5 observed among Christians, not only as a Part of military Discipline, but as a Part of the Law of Nations, viz. that whosoever ravishes a Woman, tho' in Time of War, deserves to be punished in every Country. For by the Hebrew Law none did it without Punishment, as we6 may gather from that Part which treats of a captive Woman, Deut. xxi. 10. That the Master might marry her, but upon Dislike might not sell her. Thou shalt not take Money for her, because thou hast humbled her. Upon which Beccai, one of the Hebrew Doctors, thus comments, GOD would have the Camp of Israel to be holy, not defiled with Whoredoms, and other Abominations, like the Camp of the Gentiles. Arrian, speaking of Alexander's falling in love with Roxana, says, Οὐκ Edition: current; Page: [1302] ἐθελη̂σαι ὑβρίσαι καθάπερ αἰχμάλωτον, ἀλλὰ γη̂μα γὰρ οὐκ ἀπαξιω̂σαι, He would not ravish her, as a Captive, but honourably married her. Which he highly7 commends. And8 Plutarch, of the same, Οὐκ ὕβρισειν, ἀλλ' ἔγημε ϕιλοσόϕως, He scorned to debauch her, but married her; which was an Action worthy of a Philosopher. Plutarch also mentions one Torquatus, Banished, by the9 Romans, into the Island of Corsica, for ravishing his Prisoner.
I. The Goods of an Enemy may be spoiled, or taken away.I. Cicero, in the third of his Offices, declares,1 It is not against the Law of Nature to spoil or plunder him whom it is lawful to kill. No wonder then if the Law of Nations allows to spoil and waste an Enemy's Lands and Goods,Edition: 1738; Page: [574] since it permits him to be killed.2 Polybius tells us in the fifth of his History, by the Right of War it is lawful to take away, or destroy, the Forts, Havens, Cities, Men, Ships, Fruits of the Earth, and such like Things of an Enemy. And we read in Livy,3 There are certain Rights of War, which, as we may do, so we may suffer, as the burning of Corn, the pulling down of Houses, the taking away of Men and Cattle. We may find in History, almost in every Page, the dismal Calamities of War, whole Cities destroyed, or their Walls thrown down to the Ground, Edition: current; Page: [1304] Lands ravaged, and every Thing set on fire. And we may observe, these Things are lawful to be done, even to those that surrender themselves. The Townsmen, says Tacitus,4 freely set open their Gates, and yielded themselves, and all they had, to the Romans, whereby they only saved their Lives: Artaxata was burnt by the Romans.
II. Even those that are sacred, which how to be understood.II. 1. Neither does the1 mere Law of Nations exempt sacred Things, that are consecrated, either to the true GOD, or to false Divinities, setting aside the Consideration of other Duties, (of which we will treat hereafter) from these Insults of War. Pomponius, the Civilian, tells us, When Places are taken from the Enemy,2 all Things therein cease to be sacred. Cicero, in his fourth Oration against Verres, observes,3 The Victory made all the sacred Things of Syracuse profane. The Reason of which is this, because those Things that are called sacred, are not of such a Nature, that the Moment they are consecrated to Religion, Men4 cannot more Edition: current; Page: [1305] dispose of them, and make them serve to the Uses of Life, but they5 belong to theEdition: 1738; Page: [575] Publick, and are termed sacred on Account of the religious Use to which they were intended. For Instance, when one People submit themselves to another Nation, or King, they then deliver up what is called divine, as appears from the Form which we havea elsewhere quoted, out of Livy; to which agrees that in Plautus's Amphitryo,
And again,
2. Ulpian infers therefore,6 that there is a publick Right, even in Things that are sacred.7 Pausanias tells us, that it was a common Custom Edition: current; Page: [1306] with the Greeks and Barbarians, that Things sacred should be at the Disposal of the Conqueror. So when Troy was taken, the Image of Jupiter Hercaeus fell to the Share of Sthenelus: And he brings many other Examples of the like Custom. Thucydides, Lib. iv. It was a Law among the Grecians, that he who was Master of any Country, whether great or small, was also of the Temples. To which also that in Tacitus agrees, All the Ceremonies, Temples, and Images, in the Italick Towns, were at the Disposal, and under the Power of the Romans.
3. Wherefore the People themselves changing their Minds, may turn any Thing sacred into profane, which the Civilians,8 Paulus and9 Venulejus, plainly intimate. And in Times of Necessity, Sacred Things10 have Edition: current; Page: [1307] been converted, evenEdition: 1738; Page: [576] by those who consecrated them, to the Uses of War, as by11 Pericles, but with a Promise of full Restitution, by12 Mago, in Spain, the13 Romans, in the Mithridatic War, by Sylla, Pompey,14 Edition: current; Page: [1308] Caesar,15 and others. Tiberius Gracchus says in Plutarch,16 ἱερὸν καὶ ἄσυλον οὑδὲν οὔτως ἐστιν, &c. There is nothing so sacred, so inviolable, as Things consecrated to the Gods, and yet no Body hinders the People from using, changing or removing them at their Pleasure. Our Temples, says Seneca17 in the Controversies, are stript for the State, and we melt the Vessels consecrated to the Gods to pay our Soldiers. And Trebatius18 the Lawyer in Caesar's Time, That is profane, which from being Sacred, or Religious, is converted to the Use of Men and into Property. Thus Germanicus used this Right of Nations against the Marsi, as Tacitus19 relates, He destroyed all Things both sacred and profane, and levelled with the Ground that most famous Temple among those Nations which they called the Temple of Tansanes: To this we may add that of Virgil,
Pausanias20 observes, that Things consecrated to the Gods used to be taken by the Conquerors; and Cicero21 calls it the Law of Arms, speaking Edition: current; Page: [1309] of P. Servius, He took away, says he, the Images, and the Ornaments of the Enemy's City, taken byEdition: 1738; Page: [577] Force and Valour, by the Law of Arms, and Right of Conquest. So22 Livy concerning the Ornaments taken out of the Temples at Syracuse by Marcellus, and brought to Rome, said they were got by the Right of War. And23 C. Flaminius in his Oration for M. Fulvius, The Images were carried away, which is commonly done at the taking of Cities. Also Fulvius24 calls this very Thing the Right of War. And Caesar25 in Sallust relating the Miseries that usually fall on the Conquer'd, mentions the robbing of the Temples.
4. It is true however that, if it be believed, that there is any Deity in this or that Image, then to break or spoil it, is to them that are of that Opinion, a great Impiety. And upon this Supposition they that commit such Things are so often accused of Wickedness, and even of violating the Law of Nations; but if the Enemy be of another Opinion, then it is not so. As it was not only permitted, but commanded the Jews, (Deut. vii. 5.) utterly to abolish the Idols of the Gentiles; for that they were Edition: current; Page: [1310] forbid to take them to themselves, the Reason was, to create in the Hebrews the greater Detestation of their Superstitions, by supposing that the very Touch of them was polluting: And not that what was consecrated to strange Gods should be spared, as Josephus26 expounds it; doubtless in Flattery to the Romans, as he does in the Exposition of another Precept, of not naming the Gods of the Heathen, which he explains by27 not speaking reproachfully of them; whereas the true Sense is that they should not name them with any Honour and Reverence, or without testifying an Abhorrence. For the Hebrews knew certainly, by the immediate Instruction of GOD himself, that there resided in those Images neither the Spirit of GOD, nor good Angels, or any Virtue of the Stars, as the deluded Gentiles imagined; but wicked Daemons, and such as are destructive to Mankind. Therefore Tacitus justly said, in describing the Rites and Ceremonies of the Jews,28 All Things sacred to us, are profane to them. No wonder then if we read of so many Idol-Temples burnt by the Macchabees.1 Mac. v. and 10. So also Xerxes, when he destroyed the Images of the Grecians, did nothing against the Law of Nations, tho' the Grecian Writers29 cry out upon it as a heinous Crime, to render their Enemy Edition: current; Page: [1311] odious. For the Persians30 did not believe there was any Divinity in them; but theyEdition: 1738; Page: [578] imagined the Sun was the only true GOD,31 and Fire one of his Parts. By the Hebrew Law, as the same Tacitus rightly observes,32 none were allowed to enter the Temple but the Priests only.
5. But Pompey,33 says the same Author, entred the Temple by the Right of Conquest; or as St. Augustine relates it,34 none with the Devotion of a Suppliant, but by the Right of a Conqueror. He did well to spare the Temple, and the Treasures of it, tho' as Cicero35 expressly said, out of meer Shame, and to avoid Occasions of Reproach, not out of any Reverence; Edition: current; Page: [1312] but he did ill to enter it again, as in Contempt of the true GOD, which the Prophets so highly blame the Chaldeans for; (Daniel v. 23.) for which Cause some think it was so ordered by the Divine Providence, that the same Pompey should be killed at Casius, a Promontory of Egypt, as it were in sight of Judea; but if we consider the Opinion of the Romans,36 there was nothing done by him against the Law of Nations. So Josephus [[37]] mentioning the Destruction of the same Temple by Titus, adds that it was done, τῷ τον̂ πολέμου νόμῳ, by the Right of War.
III. Yea, and Sepulchres, adding a Caution.III. What we have said of Things sacred, may also be understood of Things1 religious, (or Sepulchres) for these also do not belong to the Dead, but to the Living, whether a People, or a Family. Wherefore Pomponius observes, in the abovementioned Place, that as sacred Things, so likewise Sepulchres cease to be such, when taken by the Enemy; and2 Paulus the Lawyer says, The Sepulchres of our Enemies are not religious to us, and therefore we may take the Stones thereof, and put them to any Use. Which yet is so to be understood, that no Violence be offered to the Bodies of the Dead, which3 we have shewed in another Place, to be contrary to the Rights of Burial established by the Law of Nations.
IV. How far Fraud may be used in this Case.IV. This I shall also here repeat, that the Goods of our Enemies may be taken away from them, not only by plain Force, by the Law of Nations, Edition: current; Page: [1313] but even by Fraud, so it be without Treachery; nay, in this Case,1 we may solicit others to betray our Enemy. For, in regard to such Sort of Actions, less vicious and very common, the Law of Nations now uses a Kind of Connivance, as the civil Laws do with respect to Prostitution and Usury.Edition: 1738; Page: [579]
I. What the Law of Nature is, concerning Things taken in War.I. 1. Besides the Impunity of some Acts allowed to be used against our Enemies, of which we have treated hitherto; there is also another Effect, which1 by the Law of Nations is proper to a solemn War. And indeed by the Law of Nature those Things may be acquired by a just War, which area either equivalent to that, which tho' due to us, we cannot otherwise get, or which damnifies the Injurer, but within the Bounds of a just Punishment, as has been saidb elsewhere. By Virtue of his Right Abraham2 offered unto GOD the Tenth of his Spoil he took from the five Kings, Gen. xiv. as the Author to the Hebrews expounds it, Heb. vii. 4. and thus did Edition: current; Page: [1315] the3 Grecians, Carthaginians and Romans make the same Offering to their Gods, as to Apollo, to Hercules, to4 Jupiter Feretrius. The Patriarch Jacob leaving an especial Legacy to Joseph above his Brethren, I give to thee (says he) one Part above thy Brethren which I took out of the Hand of the Amorite, with my Sword and with my Bow, Gen. xlviii. 22. where5 the Word, I took, seems to be taken prophetically for I shall surely take, and this attributed to Jacob, which was done after by his Posterity, who were called by his Name, as if the Ancestor and his Children were but one and the same Person. Which is much better than to wrest these Words, as the Jews do, to that plundering of the Sichemites, which had been done before by the Sons of Jacob; for that, as being done treacherously, Jacob a just and religious Man did ever condemn, as we may see, Gen. xxxiv. 30. and xlix. 6.
2. Now that this Right to the Spoils taken in a just War, was approved of by GOD, within the natural Bounds prescribed, (as I said) will appear, by other Places also of Scripture. GOD in his Law, Deut. xx. 14. concerning a City, which upon Refusal of Surrender was afterwards taken by the Sword, thus orders, Thou shalt take the Spoil of it to thy self, and shalt enjoy the Prey of thine Enemies, which the LORD hath given thee. Also the Reubenites and Gadites, and half the Tribe of Manasseh are said to have conquered the Ituraeans and their Neighbours, and to have taken much Spoil from them, 1 Chron. v. 20, 21, 22. This being added as a Reason, because in the War they called upon GOD, and he was propitious to them. It is also said of good King Asa, that having called upon GOD, he obtained the Victory over the Ethiopians6 that had unjustly warred against him, and carried away much Spoil, 2 Chron. xiv. 13. which is the more remarkable, because those Wars had been undertaken not Edition: current; Page: [1316] by the special Command of GOD, but by Virtue of the common Right of all Mankind.Edition: 1738; Page: [580]
3. Joshua also blessing the Reubenites, Gadites, and half the Tribe of Manasseh before mentioned, said, Divide the Spoil of your Enemies with your Brethren, Jos. xxii. 8. And when David sent to the Elders of Israel the Spoil taken from the Amalekites, he gave it this honourable Title, a Spoil taken from the Enemies of the Lord, 1 Sam. xxx. 26. For, as Seneca says,7 Military Persons think it most honorable to enrich Men with the Spoils of their Enemies. We have also divine Laws for dividing such Spoils, Num. xxxi. 27. And Philo8 reckons among the Curses of the Law, that their Fields should be reaped by their Enemies, whence must follow, Famine to their Friends, and Plenty to their Enemies.
II. What the Law of Nations is in this Case, of which Examples are given.II. 1. Moreover, by the Law of Nations, not only he that makes War for a just Cause, but every Man in a solemn War acquires the Property of what he takes from the Enemy, and that without Rule or Measure; so that both he and his Assigns are to be defended in Possession of them1 Edition: current; Page: [1317] by all Nations; which, as to the external Effects of it, may be called the Right of Property. Thus said Cyrus in Xenophon,2 It is an eternal Law with all Men, when a City is taken by Force, the Goods all belong to the Conqueror. And so Plato,3 All that belonged to the Conquered, now belong to the Conqueror. And in other Places, among several, as it were, Kinds of4 natural Acquisitions, he places πολεμικὴν, that got by War, which he also calls ληιστικὴν by plundering, and χειρωτικὴν by superior Force. To which agrees Xenophon,5 in whom Socrates brings Euthydemus by divers Interrogatories to this Confession, that it was not always unjust to spoil, when against an Enemy.
2. And in Aristotle,6 The Law, which is a Kind of general Agreement, has allowed, that the Goods and Effects of the Conquered should become the Conquerors. As also that of Antiphanes,7 ὅτι τοι̑ς πολεμίοις, &c. We ought to wish our Enemies abundance of Riches without Valour, for in that Edition: current; Page: [1318] Case they belong, not to the present Possessors, but their Conquerors.8 And Plutarch observes in the Life of Alexander,Edition: 1738; Page: [581] What did belong to the Vanquished, is and ought to be esteemed the Vanquishers. And in another Place,9 The Goods of those overcome in War are the Reward of the Victors. Which are the Words of Xenophon, in his second Book of his Institution of Cyrus. And Philip in his Letter to the Athenians says,10 All of us enjoy Cities, which were either left us by our Ancestors, or we became Masters of by the Right of War. Also Aeschines,11 If you fight with us, and take our City by Arms, you justly possess the Rule over it by the Law of War.
3. Marcellus12 in Livy declares, that what he took from the Syracusans he did it by the Right of War. The Roman Embassadors told Philip,13 concerning the Cities of Thrace, and some others, if he had taken them by War, he might enjoy them by the Right of War, as the Reward of his Victory. And Masinissa14 pleads, the Land which his Father conquered from the Carthaginians he held by the Law of Nations. So15 Mithridates in Justin, he had not called his Son out of Cappadocia, which as a Conqueror he possest by the Law of Nations. Cicero16 tells us, that Mitylene Edition: current; Page: [1319] became the Romans by Right of War and Victory. He likewise says,17 that some Things may become a private Property, either by Seizure, where they are without an Owner, or by War, when one Party proves victorious over the other. And Dion Cassius,18 What was the Conquered's, becomes the Conquerors. And Clemens Alexandrinus19 informs us, that the Goods of Enemies are plundered and acquired by the Right of War.
4. What is taken from the Enemy, by the Law of Nations, immediately becomes the Captors,20 is the Opinion of Cajus the Lawyer. Theophilus the Greek Paraphrast on the Institutes, calls it ϕυσικὴν κτη̂σιν,21 a natural Acquisition, as22 Aristotle had called it, πολεμικὴν ϕύσει κτητικὴν; because the Right here acquired arises from the bare Fact, or taking Possession, without any other Title; as23 Nerva the Son, by the Testimony of Paulus the Lawyer, declared the Property of Things begun from a natural Possession, and some Footsteps of it remain still in regard to those Animals that are taken, whether on the Earth, in the Sea, or in the Air; as also in regard to Things taken in War, all which are the Right of those who are the first Possessors of them.
5. It must be observed here that those Things are supposed to betaken from an Enemy, which are taken from the Subjects of an Enemy. So Dercyllides argues in Xenophon,24 since Pharnabazus was an Enemy to Edition: current; Page: [1320] the Lacedemonians, and Mania a Subject to Pharnabazus, therefore the Goods of Mania were just Prize by the Law of Nations.Edition: 1738; Page: [582]
III. When moveable Goods are said to be taken by the Right of Nations.III. 1. Moreover, by the Consent of Nations, Things are then said to be taken in War, when they are so detained, that the first Owner has lost all probable Hopes of recovering them, and cannot pursue them, as1 Pomponius determines a like Question. This takes Place, in Regard to moveable Things, when they are carried home, that is, into Places whereof the Enemy is Master. For in the same Manner a Thing is lost it is recovered by Postliminy; but it2 returns to its antient Proprietor, as soon as it comes again into the Dominions of the Sovereign on whom he depends; which is explained elsewhere,3 by Places whereof he is Master. Edition: current; Page: [1321] And Paulus4 the Lawyer affirms, that Man to be taken that is carried out of our Bounds. And Pomponius5 declares, that Man to be taken in War, whom the Enemy has taken from us, and carried into Places whereof they are Masters; for till then he is reputed our Subject.
2. And by this Law of Nations the Case is the same with Respect to Goods as Persons, whereby we may easily perceive, that when in other Places Things taken are said immediately to be the Captors,6 it ought to be understood upon Condition that they continue so long in their Possession; whence it seems, by Consequence, that at Sea, Ships, and other Things are then only said to be taken, when they are brought into the Enemy's Harbours, or the Place where their whole Fleet rides, for then there is no Hope of Recovery. But by a new Law of Nations,a established among the States of Europe, they are accounted lost,7 if they continue twenty-four Hours in the Enemy's Possession.Edition: 1738; Page: [583]Edition: current; Page: [1322]
IV. When Lands are said to be acquired.IV. 1. Buta Lands are not said to be taken as soon as they are seized on; for tho' it be true, that that Part of the Country, (as1 Celsus observes) which the Enemy with a strong Army has entered, is for that Time possessed by them; yet every Possession is not sufficient for the Effect which we are now treating of, but such a one as is durable only: Therefore the Romans were so far from thinking that Part of Land without the Gate to be entirely lost, whereon Hannibal encamped,2 that at that very Time they sold it as dear as before. That Land then is reputed lost, which is so secured with Fortifications, which without being forced cannot be repossest by the first Owner.
2. And this Derivation of the Word Territory given by Siculus Flaccus,3 à terrendis Hostibus, from terrifying the Enemy, seems as probable as that of Varro;4 à terendo, from treading upon; or that of5 Frontinus, à Edition: current; Page: [1323] terrâ, from the Earth; or that of Pomponius the Lawyer, à terrendi jure, from that Power to terrify which the Magistrates have. Thus Xenophon, in his Book concerning Tributes, says, that the Possession of Lands is held in Time of War by Fortifications, which he himself calls6 Τείκη, καὶ ἐρύματα, Walls and Retrenchments.
V. Things not our Enemy's are not to be acquired by War.V. This is also plain, that before the Right of War can entitle us to any Thing taken, it is requisite that our Enemy had first the true Propriety of it; for what Things may be within the Enemy's Towns, or other Places whereof he is Master, the Owners thereof being neither Subjects to our Enemy, nor animated with the same Spirit1 as he against us, cannot be Edition: current; Page: [1324] acquired by the Right of War; as isEdition: 1738; Page: [584] proved, among others, by the Saying of2 Aeschines, that Amphipolis beinga City belonging to the Athenians, could not be appropriated by King Philip to himself, in a War which he made with the Amphipolitans. And indeed there is no Reason that3 authorises us to take the Goods of those who are not of our Enemy's Party, under Pretence that they are found in his Country; and the Change of Master by Force, is too odious to admit any Extension.
VI. What of Things found in Enemies Ships.VI. Wherefore the common Saying,1 that Goods found in our Enemies Ships are reputed theirs, is not so to be understood, as if it were a constant Edition: current; Page: [1325] and invariable Law of the Right of Nations, but a Maxim, the Sense of which amounts only to this, that it is commonly presumed, in such a Case, the Whole belongs to one and the same Master: A Presumption however, which, by evident Proofs to the contrary, may be taken off. And so it was formerly adjudged in Holland, in a full Assembly of the sovereign Court, during the War with the Hanse Towns, in the Year 1338, and from thence hath passed into a Law.
VII. Things taken from our Enemies are ours by the Law of Nations, tho' they took them from others.VII. 1. But this is certain, if we only respect the Law of Nations, what we take from our Enemies, cannot be claimed by those from whom our Enemies before had taken them by Right of War; because the Law of Nations1 had first made our Enemies Proprietors of them by an outward Right, and then us. By which Right, among others, Jeptha defends himself against the Ammonites, (Judges xi. 23, 24, 27.) because the Land in Dispute was taken from the Ammonites; as also another Part of the Land from the Moabites, by the Amorites, by the Right of War; and from them by the same Right, by the Hebrews.2 So David challenges, and divides as his own, the Spoils which he had taken from the Amalekites, and they before from the Philistines. (1 Sam. xxx. 18. & seq.)
2. Titus Largius, (as Dionysius3 Halicarnassensis relates it) thus gave his Opinion in the Roman Senate,4 when the Volscians laid Claim to some Lands which the Romans had won by the Right of War, because they had been formerly theirs, We Romans account the Possessions won Edition: current; Page: [1326] by the Sword most just and honest; neither can we be persuaded by a foolish Easiness, to destroy the Monuments of our Valour,Edition: 1738; Page: [585] by returning them to those that lost them. Nay, those very Lands we ought not only to communicate to those Citizens now alive, but to leave them to our Posterity, instead of parting with what we have, and treating ourselves like Enemies. This also is plain from the Answer the Romans gave the Aurunci,5 We Romans think it just, that whatsoever a Man wins by his Valour from his Enemies, he may leave to his Children, as being his own by a very good Title. In another Place, the Romans answer the6 Volsci thus, But we account those our best Estates which we conquer from our Enemy; since they are ours, not by our own Laws, but a Law derived rather from the Gods than Men, and allowed by the constant Practice of all Nations, both Greeks and Barbarians; we shall therefore yield up nothing cowardly of what we have purchased valiantly; for it would be a great Disgrace to us, if either through Fear or Folly we should quit what we have won by Bravery and Valour. So in the Answer of the Samnites,7 We have gained this by War, which Law of Acquisition is the justest.
3. Livy, speaking of Land near Luna, divided by the Romans, says,8 That Land had been taken from the Ligurians, and it had been the Hetrurians before it was the Ligurians. By this Right the Romans held Syria, Edition: current; Page: [1327] as9 Appion observes, not restoring it to Antiochus Pius, from whom Tigranes, an Enemy to the Romans, had taken it; and Justin, out of Trogus, brings in Pompey returning this Answer to the same Antiochus,10 As he took not the Kingdom from him whilst he was in Possession of it, so neither would he, after he had yielded up his Right to Tigranes, restore to him a Kingdom which he could not keep. So those Parts of Gallia which the Cimbri had taken from the Gauls,11 the Romans afterwards taking,12 held as their own.
VIII. That Things taken from the Enemy are not always theirs that take them.VIII. But here is a more difficult Question, to whom do the Spoils taken from the Enemy in a publick and solemn War belong, whether to the People in general, or to private Persons, of and among1 the People? The modern Expositors of the Law here vary very much in their Opinions; for most of them findinga in the Roman Law,2 that the Things taken become the Captors; and in the Canon Law,3 that the Spoils are to be divided by publick Determination, do say, one after another, (as is usual) that tho' principally, and by original Right, the Captor has the best Title to them, yet they are to be brought to the General, and he is toEdition: 1738; Page: [586] Edition: current; Page: [1328] distribute them among the Soldiers. Which Opinion, not less common than false, I shall take the more Care to confute, that we may see how unsafe it is in such Controversies to rely upon the Authority of those Doctors. There is no Doubt, but the Consent of Nations might have established the one or the other of these two Rules, either, that the Things taken should belong to the People that bear the Charge of the Wars, or to the first Captor;4 but the Question is, what Nations really intended to establish in this Case? And I affirm, that their Intention was, that the Goods of one Enemy, with Respect to another, should be considered as Things5 without a Proprietor; as we have before6 explained, from the Words of Nerva the Son.
IX. That naturally both Possession and Property may be acquired by another.IX. 1. The Things that are Nobody's, indeed become the Captor's; but they may be called Captors, who employ others to take them, as well as they who take them themselves. So they who are employed by others to catch Fish, Fowl, Deer, or Pearls; as Slaves, Children not emancipated, and sometimes Freemen, take them for those that employ them. Modestinus1 Edition: current; Page: [1329] the Lawyer said well, Whatsoever is naturally gained, as Possession is, we may gain by any one whom we will appoint to do it for us. And also Paulus,2 We acquire Possession by the Mind, and by the Body; the Mind, I mean our own, but the Body may be either our own or another's. And in another Place,3 Possession may be taken by an Attorney, Guardian, or Trustee; provided it be done with the Design of doing it for us, and in our Name. So among the Greeks, they that overcame in the4 Olympick Games, gained the Prizes, not for themselves, but for them that sent them. The Reason is, because one Man may make Use of another, as his Instrument, if both are willing, as we have declared in another Place. (B. i. Chap. v. § 3.)
2. Wherefore the Difference put between Freemen5 and Slaves, in Respect to Acquisitions, regards only the Civil Law, and properly belongs to Civil Acquisitions, as appears from the afore-quoted Place of6 Modestinus Edition: current; Page: [1330] And yet the Emperor Severus7 brought these afterwards nearer to the Pattern of naturalEdition: 1738; Page: [587] ones; not only for the Good of the Publick, as he himself acknowledges, but also to follow the Rules of Right and Equity; therefore, setting aside the civil Right, that Saying holds true, that what a Man does himself, for himself, he may also do by another, and it is the same Thing8 to do it by another as by himself.
X. A Distinction of Actions done in War into publick and private.X. We must then here distinguish between the Acts which in a War are truly publick, and private Acts, that are done by the Occasion of a publick War.1 By these private Acts the Goods of an Enemy principally and directly belong to the private Persons, by the other to the People. Upon this Principle of the Right of Nations Scipio argues with2 Masinissa, in Livy, Syphax has been vanquished and taken, by the Conduct of the Romans; therefore he, his Wife, Kingdom, Lands, Towns, and their Inhabitants, and, in a Word, whatsoever belonged to Syphax, is become lawful Prize to the People of Rome. And thus did Antiochus the Great plead, that Coelo-Syria did of Right belong to Seleucus, and not to Ptolemy, for Edition: current; Page: [1331] that Seleucus maintained the War, to whom Ptolemy was but an Assistant, according to Polybius, in the fifth Book.
XI. The Land taken is the People's, or his that maintains the War.XI. 1. Immoveable Goods are not usually taken, but by some publick Act, as by bringing in an Army, or by planting of Garrisons, therefore, as Pomponius decided,1 Lands taken from the Enemy fall to the State, that is, as he explains it, Is not Part of the Booty,2 strictly taken. Thus Salomo, a Lieutenant-General, in Procopius,3 That Prisoners, and all other Moveables, should be a Booty to the Soldiers, is not unreasonable, (so it be done by publick Grant, as we shall hereafter explain it) but that the Lands should belong to the Emperor, and the Roman Empire.
2. So among the4 Hebrews and Lacedemonians,5 Land taken in War was divided by Lot: Thus the Romans either kept the Lands taken in War to let out, (a small Part of it sometimes being left out of Civility to the Edition: current; Page: [1332] former Owners) or sold them, or assigned them to Colonies, or made them tributary; whereof you may find many Testimonies in Laws, Histories, and Treatises on Surveying.6 AppianEdition: 1738; Page: [588] in his first Book of the Civil War tells us, When the Romans had conquered Italy, they took away Part of their Lands. And in his7 second Book, Having subdued their Enemies, they did not take away all their Lands, but a Part. And Cicero8 observes that their Generals having conquered an Enemy, sometimes consecrated his Lands, but by the Decree of the People.
XII. Things moveable, either with or without Life, taken by a private Act, are the Captor's.XII. 1. But Things moveable, whether with or without Life, are either taken in publick Service, or out of it. If they are not taken in publick Service,1 they are the private Captor's. And hither we may refer that of Celsus,2 Whatever among us was the Enemy's, belongs not to the State, but to the prior Occupant. Whatever is among us, that is, is found with us in the Beginning of the War. For the same was observed of Persons, when they were in this Case considered as Goods taken. There is a remarkable Passage in Tryphoninus, to this Purpose,3 But they who in Times of Peace Edition: current; Page: [1333] came to dwell in another Country, upon the sudden breaking out of a War, unfortunately become the Slaves of those who are become their Enemies; where we may observe, that the Lawyer attributes this to Fate, because they fell into Bondage, without any Merit of their own. For it is common to ascribe such Things to Fate. So that of Naevius, The Metelli were made Consuls of Rome by Fate, that is, without any Merit of their own.
2. Thus it is, when Soldiers take any Thing from their Enemies when they are not upon Duty, or executing the Commands of their Captain, but doing what any other Person might do, or by a bare Permission, what is thus taken, is lawful Prize to the Captors, because they do not take them as Servants of the Publick. Such are the Spoils taken in a single Combat, and in Excursions, made freely, without Command, into an Enemy's Country, at a Distance from the Army, (ten Miles, according to the Roman Law, as we shall see presently) which the Italians call Correria, and distinguish it from Bottino, Booty.
XIII. Unless the Civil Law otherwise ordain.XIII. And whereas we say, that by the Law of Nations, whatsoever is thus gained, becomes directly the Captor's, it is to be so understood, that this was the1 Law of Nations, before any Thing was decreed in this Case by the Civil Law. For every State or People may otherwise determine of it among themselves, and prevent the Right of private Men, as we see done in many Places concerning wild Beasts and Fowl. So it may be ordained by Law, that whatsoever Goods of the Enemies are found among us, should be confiscated to the State.
XIV. What is taken by a publick Act is the Publick's, or his that maintains the War.XIV. 1. But as to those Things that a Man takes in a military Expedition, the Case is very different. For here every Soldier represents the Body of the State, and executes the Business of the whole political Body: Wherefore (if the Civil Law does not otherwise provide) the State acquires both the Possession and Property of Things taken, which it may transfer to whom it pleases; and because this directly contradicts the common Edition: current; Page: [1334] Opinion, I find myself obliged to enlarge upon it more than usual, and to prove it from the Examples of the most celebrated Nations.Edition: 1738; Page: [589]
2. I shall begin with the Greeks, whose Custom Homer1 describes in several Places.
Achilles, in the same Poet, recounting the Cities which he had taken himself, says,
For here we must look upon Agamemnon, partly as Head of all Greece at that Time, and so representing the whole Body of the People, by which Right he divided the Spoil, but with the Advice of his Council; and partly as General, and so out of that which was publick, he claimed a greater Share than others to himself. Therefore Achilles thus addresses Agamemnon,
And in another Place Agamemnon, by the Advice of his Council,4 offers to Achilles, a Ship laden with Gold and Silver, and twenty Women, as his Share of the Spoil. When Troy was taken, as Virgil relates, Aeneid ii.5
So, long after,a Aristides faithfully watched the Booty taken at the Battle of Marathon. And after the Battle at Plataeae, it was strictly forbidden, that any Man should take to himself any Part of the Spoil; andb afterwards it was distributed among the People, according to every one's Deserts. The Athenians being subdued,c Lysander brought the Spoil into the publick Domain. And the Spartans had publick Offices, called Λαϕυροπω̂λαι,6 appointed to make Portsale of all the Prizes taken in War.Edition: 1738; Page: [590]
3. If we pass to Asia, Virgil7 tells us, that the Trojans used to divide the Spoil by Lot; as is usual where Things held in common are to be divided among many. Otherwise the General had the dividing the Spoil, Edition: current; Page: [1336] by which Right Hector, upon Dolon's Request,d promised to give him Achilles's Horses; whereby we may perceive that this Right of gaining Property was not in the sole taking of the Thing. The Spoil taken in Asia was brought toe Cyrus, being Conqueror, and so afterwards tof Alexander. If we look into Africa we there find the same Custom; so the Things taken atg Agrigentum, and at the Battle ofh Cannae, and elsewhere, were sent to Carthage. Among the old Franks, as we find in the History of Gregorius Turonensis, whatsoever was taken in War8 was divided by Lot. Neither had the King any other Share than what the Lot gave him.
4. But by how much the Romans exceeded all other Nations in the military Art, so much the more do they deserve our Consideration of the Examples they furnish us with, in Regard to the Subject we are now upon. Dionysius Halicarnassensis, a most exact Observer of the Roman Customs, thus instructs in this Case,9 Τὰ ἐκ τω̂ν πολεμίων λάϕυρα, &c. Whatsoever their Valour has taken from the Enemy in War, the Law has decreed to be publick, so that not only the private Soldiers are not Proprietors thereof, but not even the General himself; the Quaestor causes the whole to be sold, and brings the Produce of it into the publick Treasury. These are the Words of those that accused Coriolanus, who, to render him odious, do not express themselves altogether exactly.Edition: current; Page: [1337]
XV. Yet in such Things some Power was left to the Will of the General.XV. For it is true that the People are the Righta Owners of the Spoil.1 Yet it is as true, that the Power of disposing of it was, in the Times of the Republick, left2 to the General; yet so that he was to give an Account of it to the People. L. Aemilius says, in Livy,3 that Cities taken by the Sword, not those that surrendered, were pillaged; but this at the Will of the General, not of the Soldiers. Yet this Power, which Custom had bestowed on the Generals, they themselves have sometimes, to take away all Suspicion, referred to the Senate, as Camillus4 did; and they that have retained it, are found to have disposed it to several Uses, either for Religion, Reputation, or Ambition.
XVI. Who either brings 'em to the publick Treasury;XVI. 1. But they who desired to be, or be thought most upright,1 would not at all meddle with the Prey; but whether it were in Money, they ordered theEdition: 1738; Page: [591] Quaestor of the People to receive it, or other Goods, the Quaestor was commanded to sell them publickly, and the Money Edition: current; Page: [1338] arising from thence (called Manubiae,2 Spoils, as Favorinus observes, in Gellius) was, by the Quaestor, brought into the Treasury; but if the Expedition was such as deserved the Honours of a Triumph, it was first publickly shewed. And3 Livy says of C. Valerius the Consul, There was but a little Spoil (because they had been often plundered, and had secured most of their Goods in Places of Safety); this being publickly sold, the Consul ordered the Quaestors to put the Money into the Treasury. Pompey did the same, of whom Velleius4 records, He gave the Money that he had taken from Tigranes, as his Custom was, to the Quaestor, and had it registered. And so M. Tully,5 in his Letter to Salust, writes of himself, Besides the Quaestors of the City, that is, the People of Rome, no Man has or shall touch the Prey that I have taken. And this was generally done in the antient and best Times of the Commonwealth, to which Plautus alluding, says thus,
And likewise of Prisoners,
2. But other Generals did without a Quaestor sell the Spoil, and put the Money into the Treasury, as we may gather from8 what follows in Edition: current; Page: [1339] the Passage of Dionysius Halicarnassensis, whom we have cited a little above. So King Tarquin, when he had conquered the Sabins,a sent the Prey and Prisoners to Rome. So Romulius and Veturius the Consulsb sold the Spoil to supply the Treasury, the Army repining at it. But there is nothing more common, than to find in History an Account of the Riches that such or such a General, either by himself or the Quaestor, brought into the Treasury from the Triumphs over Italy, Africa, Asia, Gaul and Spain: So that it would be needless to heap together a great many Examples. But this is more remarkable, that the Spoil, or Part of it, was sometimes given to the Gods, sometimes to the Soldiers, and sometimes to others. To the Gods were given either the Spoils themselves, as those which Romuliusc hung up to Jupiter Feretrius, or turned into Money, asd Tarquin the Proud built the Temple of Jupiter on the Tarpeian Hill, with the Money raised from the Spoils of the City Pometia.
XVII. Or divides them among the Soldiers, and how.XVII. 1. To give the Spoil to the Soldiers, the old Romans thought a Sign of Ambition. So Sextus the Son of Tarquin the Proud, when retired to Gabii, is said to have distributed the Prey among the Soldiers,1 to make himself the more powerful.2 Appius Claudius in the Senate, declared such Largesses to be new, prodigal, and inconsiderate.
But the Spoil given to the Soldiers is either divided, or left to be pillaged. It may be divided, either instead of Pay,3 or to reward Merit. Appius Claudius4Edition: 1738; Page: [592] was for giving it in lieu of Pay; if it could not Edition: current; Page: [1340] be sold, and the Money brought into the Treasury.a Polybius describes exactly the Manner of this Distribution, namely, that one Part of the Army, the Half at the most, was sent out in the Day-Time,5 or in the Night, to fetch in the Spoil, who were ordered to bring all they found into the Camp, that it might be equally divided by the Tribunes, Shares being likewise allowed to them who staid in the Camp (which King David6 made a Law among the Hebrews, 1 Sam. xxx. 24, 25.) and also to those, who either by Sickness, or because they were sent elsewhere, were then absent.
2. Sometimes the Spoil was turned into Money, and that, in lieu of it,b was given to the Soldiers, which was often done in Triumphs. The Proportions I find thus, a single Share to a Foot Soldier; a double Share to a7 Centurion or Captain; a treble to a Trooper; sometimes a single8 one to a Foot Soldier, and double to a Trooper; at other Times a Centurion had double the Share of a Foot Soldier, and the Tribune, as also9 a Trooper, quadruple. There was also sometimes Regard had to their Edition: current; Page: [1341] Merit, as Marcius, because he had behaved himself gallantly, was particularly rewarded by Posthumius, out of the Spoils taken at10 Corioli.
3. Which Way soever the Spoil was divided,c the General11 was allowed to take to himself ἐξαίρετον, A choice Part, what he pleased; that is, what he thought was just and reasonable,12 which also was sometimes Edition: current; Page: [1342] granted to others for theirEdition: 1738; Page: [593] Valour. Euripides, speaking of the Trojan Ladies, says,13
And of Andromache,14
Ascanius, in Virgil,15
Herodotus relates that noble Presents were given to Pausanias16 after the Battle of Plataeae, Women, Horses, Camels, &c. So King Tullius17 chose Ocrisia Corniculana for himself; and Fabricius,18 in his Oration to Pyrrhus, in Dionysius Halicarnassensis, speaks thus, Of the Spoils taken in War, I might have chosen what I pleased for myself. Isidore,19 treating Edition: current; Page: [1343] of the Right of War, refers to it, The Distribution of the Spoil, according to the Quality and Services of Persons; to which he adds, The Portion of the General. Tarquin the Proud, according to Livy,20 would both enrich himself and gain the Affections of the People with the Spoil. Servilius,21 in his Oration for L. Paulus, said, he might have made himself rich by dividing the Spoil. And some think, that only the General's Part was called Manubiae, as Asconius Pedianus22 for one.
4. But those Generals are more worthy of Commendation, who, quitting their own Right, have taken nothing of the Prey to themselves, as23 Fabricius just mentioned, Preferring Glory even to Riches justly acquired, which he said he did in Imitation of Valerius Publicola, and a few others; whom M. Portius Cato24 imitated in his Spanish Victory, saying, that he would take nothing to himself of the Prey, but barely what he eat and drunk; yet adding, that he did not blame those Generals who made Use of the Advantages allowed them; but as for himself, he had rather rival the best of Men in Virtue, than the richest in Wealth. Next to these are those Generals to be commended, who take to themselves some of the Prey, but moderately, as Pompey is praised by Cato in Lucan,25 who,Edition: 1738; Page: [594]
5. In dividing the Spoil, they sometimes considered those that were absent, as Fabius Ambustusd ordered, at the taking of Anxur; and sometimes for certain Reasons they were omitted that were present, as the Army commanded by26 Minutius, when Cincinnatus was Dictator.
6. But what Right the Generals, called Imperatores, in the Time of the Commonwealth had, was transferred, after it had been seized on by those who governed absolutely under that Name, to the Lieutenants, (Magistri Militum) who, by their Order commanded the Armies. This appears by Justinian's Code,27 where it is enacted, that the Commanders of the Army shall not be obliged to put into the List of military Affairs, for which they were accountable, the Donations of Moveables, either with or without Life, which they gave the Soldiers out of the Spoils of the Enemies, whether at the Time and Place of Pillage, or elsewhere.
7. But this Division proved often the Occasion of Slander, as if the Generals by that Means proposed to gain Favour to themselves; with which they charged Servilius, Coriolanus, and28 Camillus, as if they had enriched their Friends and Clients out of the publick Stock. They, on the other Side, alledged, that they had done it for the publick Good,29 That the Persons who took the Pains being rewarded for their Labour, might with more Courage undertake other Exploits; which are the Words of Dionysius Halicarnassensis on this Subject.Edition: current; Page: [1345]
XVIII. Or suffers them to be plundered.XVIII. 1. I now come to Plundering, which was granted to the Soldiers, either when they went to ravage the Enemy's Country, or after a Battle, or after the taking of a Town, so that upon a Signal given, they might run in immediately, which was rarely granted of old, and yet not without some Examples in those Times. For Tarquina gave the City Suessa Pometia to be plundered by his Soldiers. So did Q. Servilius,b the Dictator, the Camp of the Aequi. Camillus,1 the City of the Veii: Servilius, the Consul,2 the Camp of the Volsci. Also L. Valerius3 gave License to plunder in the Country of the Aequi. So did Q. Fabius,c having routed the Volsci, and taken the City Ecetra, and several others afterwards. Paulus,d the Consul, having conquered Perseus, gave the Spoil of that Prince's Army to his Foot, and that of the Country round about to his Horse. And, by the Decree of the Senate, he gave the Plunder of the4 Cities of Epirus to his Soldiers.5 Lucullus having vanquished Tigranes, a long Edition: current; Page: [1346] while forbad his Soldiers plunder-Edition: 1738; Page: [595]ing, but at last, being assured of the Victory, he gave them Leave to do it. Cicero,6 in his first Book of Invention, among the Methods of7 acquiring a Right of Propriety, puts the taking of the Enemies Effects, which have not been publickly sold.
2. They who do not like this Custom, say, that by this License to plunder,e the greedy Soldiers often hinder the truly Valiant of the just Reward of their Bravery; and that We frequently see the backwardest to fight the most forward to plunder; whilst the most courageous expect only the largest Share of Labour and Danger, which are the Words of Appius, in Livy.8 To which let us add that of Cyrus, in Xenophon, Edition: current; Page: [1347] 9ἐν τῃ̑ ἁρπαγῃ̑ εν̂̔ οἰ̂δ' ὅτε οἱ πονηρότατοι πλεονεκτήσειαν ἂν, In plundering I know the worst Soldiers get most. To this it is alledged, on the other Side, what a Man takes from the Enemy with his own Hand, is more dear10 and pleasing to him than much more bestowed upon him by the Order of another.
3. Sometimes also Plundering is granted, because it cannot well be hindered; as it was at the taking of Cortuosa, a Town of the Hetrurians, according to Livy.11 The Tribunes ordered the Spoil to be sold, but the Command was too late for the Purpose, for the Soldiers had already seized on it, and it could not be taken away without Envy. We also read, that the Camp of the Gallo-Greeks12 was plundered by the Army of C. Helvius, against the Will of the General.
XIX. Or gives them to others.XIX. What I said, that sometimes others who were no Soldiers partook of the Spoil, or of the Money arising from the Sale of it; this happened commonly when some had contributed to the Maintenance of the War, and were to be1 reimbursed. And sometimes Plays were instituted out of the Money of the Spoil.Edition: 1738; Page: [596]
XX. Or dividing them into Parts, disposeth of some one way, some another, and how.XX. 1. Neither is the Spoil diversly disposed of, only when the Wars are divers; but the same Prey, in the same War, is often appropriated to several Uses, distinguished either by its Parts or its Kinds. So Camillus Edition: current; Page: [1348] adedicated the Tenth of the Spoil to1 Apollo Pythius, in Imitation of the Greeks, who first learnt it of the Hebrews; at which Time, under the Vow of tithing the Spoil, the Chief-Priests adjudged, that not only Moveables, but also Towns and Fields, were included. The same Camillus having vanquished the Falisci, delivered the greatest Part of the Spoil to the Quaestor, andb reserved a small Part for the Soldiers. So did also L. Manlius,2 Either sell the Spoil which he brought into the publick Treasury, or divided it among the Soldiers, as equally as possible: Which are the Words of Livy.
2. The Kinds into which a Prey may be divided are these: Prisoners of War, Herds, Flocks, (called properly in Greek λεία, the Prey) Money, and other Moveables, both rich and ordinary.3 Q. Fabius having overcome the Volsci, ordered the Prey and Spoils to be sold by the Quaestor; but the Silver he brought himself into the publick Treasury. And when he had subdued the Volsci and Aequi,c he gave the Prisoners, excepting those of Tusculum, to the Soldiers; and in the Lands of Ecetra, he left the Persons and Cattle to be plundered. When L. Cornelius took Antium,d he brought all the Gold, Silver, and Brass into the Treasury; sold the Prisoners, and the Prey, by the Quaestor, and left to the Soldiers the Provisions and Cloaths. Not unlike to this was that of Cincinnatus,e who having taken Corbio, a Town of the Aequi, sent the richest of the Spoil to Rome, the Rest he divided to the Soldiers by Companies. Camillus, upon taking Veii,f brought nothing into the Treasury, but the Money arising from the Sale of the Prisoners, and having conquered the Hetrurians, he sold the Prisoners, and out of that Money repaidg the Roman Ladies what they had contributed to the War, and laid up three golden Cups in the Capitol. And when Cossus was Dictator, all the Prey from the Volsci, except free Persons, was givenh to the Soldiers.Edition: current; Page: [1349]
3. Fabricius having conquered the Lucans, the Bruttii, and the Samnites,4 enriched his Soldiers, restored to the Citizens what they had contributed to the War, and brought 400 Talents into the Treasury. Q. Fabius and Appius Claudius havingi taken Hanno's Camp, sold the Prey, and divided it, rewarding those that had done signal Services. Scipio at the taking of Carthage,k gave his Soldiers the Plunder of the City, except the Gold, the Silver, and the Things consecrated to the Gods. Acilius having taken Lamia,l divided Part of the Spoil (among his Soldiers) and sold the Rest. Cn. Manlius having vanquished the Gallo-Greeks, and according to the Superstition of Rome, burnt their Arms, he ordered every one to bring in what he had taken; of which he sold a Part, that is, what was to come to the Publick; and divided the Rest amongst the Soldiers as equally as possible.
XXI. Sometimes the Publick cheated of the Spoil.XXI. 1. From what we have said, it appears, that no less among the Romans, than other Nations, the Spoil belonged to the People; but the Disposing of it was sometimes left to the Generals; yet so, (as I said before) they were to give an Account of it to the People; which we may learn among others, from the Example of1 L. Scipio, who, according to Valerius Maximus, was condemned of wronging the Publick, as having received six Pounds of Gold, and 480 Pounds of Silver, more than he had brought into the Treasury; and of others whom I have mentioned before.
2. M. Cato, in his Oration concerning the Spoil, did (as Gellius observes) in strong and noble Terms complain of the Licence granted to their Generals, andEdition: 1738; Page: [597] their Impunity for cheating the Publick. Of Edition: current; Page: [1350] which Oration there remains this Fragment,2 Those who rob a private Person are condemned to be laid in Irons for Life; but the Robbers of the Publick live in Magnificence, we see nothing but Gold and Purple in their Houses. And again,3 That he admired how any Man durst set up in his House Statues taken in War, as if they were so much Furniture. Thus did Cicero4 exaggerate the Crime of Verres, in defrauding the Publick, because he had stoln a Statue, and that taken out of the Prey of the Enemy.
3. Neither were Generals only, but also private Soldiers, accused of this Crime of robbing the Publick, if they did not produce what they had taken. For they were all, as Polybius5 says, bound by an Oath, That they should carry off nothing of the Prey, but honestly keep their Faith, as they had sworn. To which we may refer the Form of the Oath in Gellius,6 by which the Soldier is obliged to take away nothing within the Army, or ten Miles round, that was of more Value than two Pence Halfpeny; or if he took it, to bring it to the Consul, or within three Days declare it publickly. Hence we may understand the Meaning of Modestinus,7 He that hath stolen away the Spoil taken from the Enemy, is guilty of wronging the Publick. Which one Passage is enough to convince the modern Interpreters, that the Spoils taken from the Enemy do not peculiarly belong to the Captors; for it is plain there can be no robbing the State, but in Things publick, sacred, or religious. The Design of all this is to shew, (as I said before) that setting aside the Civil Law, and primarily, Edition: current; Page: [1351] whatsoever is taken from the Enemy, in any military Expedition, belongs to the Prince or People who maintain the War.
XXII. That something may be changed of this common Right by any Law, or Act of the Will.XXII. 1. We added, Setting aside the Civil Law, and primarily, or directly: The first, because the Law, whether made by the People, as among the Romans, or by the King, as among the Hebrews and others, may dispose of Things not actually possest, to the Benefit of the State. And here, under the Notion of Law, we comprehend also Custom, if duly established. And the other, that we may know, that it is in the Power of the People to grant the Spoils to others, as well as other Things; and that not only after Acquisition, but also before it; so that the Capture following, the Donation and the taking Possession are united,1 Brevi manu, as the Lawyers term it. Which Grant may be made, not only by Name, but also in general; as part of the Spoil was given in the Time of the Maccabees, to Widows, aged People, and poor Orphans; or to uncertain Persons, as the Gifts thrown2 among the People, which the Roman Consuls allowed to them that could catch them.
2. Neither is the transferring this Right, either by Law, or Grant, always a mere free Gift, but sometimes the Payment of a Debt, or Satisfaction for Loss received, or by Way of Reimbursement of Charges in the War, or Recompence for Services, as when Allies or Subjects serve without Pay, or for less than their Labours deserve. For in these Cases it is usual to grant either the Whole, or some Part of the Spoil, to others.
XXIII. Some of the Spoil may be given to our Allies.XXIII. And our Lawyers observe, that silent Custom has so prevailed almost every where, that our Allies, or Subjects, who serve without Pay, and at their own Cost and Hazard, should enjoy what they take.1 The Reason, as to our Allies, is plain, because by the Law of Nature one Confederate is obliged to repairEdition: 1738; Page: [598] the Losses of another, suffered Edition: current; Page: [1352] on Account of the common or publick Affair. Besides, few will take Pains for nothing; Therefore, (Seneca2 observes) we pay Physicians, because we call them away from their own Affairs to serve us. Quintilian3 says the same, in Regard to Advocates, because they spend their Time and Study to defend other Mens Estates, and neglect all other Means of improving their own. As Tacitus also remarks, They neglect their own Affairs, to mind those of other Men. It is therefore to be presumed, (unless some other Cause appears, as pure Kindness, or some previous Contract) that the Hope4 of gaining the Enemies Spoils, as a Reward to their Pains and Hazard, made them undertake it.
XXIV. Sometimes also Subjects; illustrated by Examples.XXIV. 1. The Thing is not so plain as to Subjects, because they owe their Service to the State; but since not all, but some only, hazard themselves; therefore it is but just, that a Retribution be made by the whole Body, to those, who more than the Rest, undergo the Fatigues and Charges of the War, but much more the Damages attending it; in Return of which, the Hopes of the whole Prey, or of an uncertain Part, is readily granted to them, and not without Reason. Thus thought the Poet.
2. As to our Allies, we have an Example in the Roman League, whereby the Latins1 were admitted to an equal Share2 of the Spoils taken from the Enemy in the Wars that should be made under the Conduct of the Roman People. So in the Wars wherein the Aetolians were assisted by the Romans, it was agreed, that the Towns and Lands should be the Aetolians,3 but the Romans have the Prisoners and Moveables. After the Victory over King Ptolemy,a Demetrius gave Part of the Prey to the Athenians. St. Ambrose,4 treating of Abraham's Expedition, shews the Equity of this Custom, He thought it just, that they who assisted him in that Expedition, and were perhaps in Alliance with him, should partake of the Spoils, as a Reward of their Labour.
3. As to Subjects, we have an Example in the Hebrews, among whom half the Prey was given5 to them who went out to Battle, Num. xxxi. Edition: current; Page: [1354] 27, 47. and 1 Sam.Edition: 1738; Page: [599] xxx. 22. 2 Macc. viii. 28, 29. So the Soldiers of Alexander claimed the Spoil taken from private Men to themselves, but any that was very valuable, they presented to the King; whence we find them accused at Arbela,b who conspired to rob the Publick, by appropriating the Prey to themselves, and to bring none into the Treasury.
4. But what publick Things belonged to the Enemies, or their King, were exempted from this Licence. Thus the Macedonians having forced Darius's Camp, near the River Pyramus, carried away an infinite Mass of Gold and Silver, and left nothing untouched,6 besides the Royal Pavilion; It being an antient Custom among them, (says Curtius) to receive the Conqueror in the Pavilion of the conquered King. Not unlike the Custom of the Hebrews, who set the Crown of the conquered King on the Head of the Conqueror, 2. Sam. xii. 30. assigning to him (as we find in thec Talmud) all the Royal Baggage taken in War. We read of Charles the Great, when he had conquered the Hungarians, he gave the private Spoils to the Soldiers, but what belonged to the vanquished King he brought into the Treasury. The Greeks7 called the publick Spoils Λάϕυρα, as we shewed before, the private Σκν̂λα; their Σκν̂λα were such as were taken in the Heat of Battle; and Λάϕυρα when the Battle was over. A Distinction likewise allowed by other Nations.
5. It is plain, by what I have said already, that the Romans, in the early Days of their State, did not allow so much to their Soldiers, but the civil Wars indulged them with more Liberty. Thus8 Equulanum was given Edition: current; Page: [1355] to be plundered by the Soldiers, by Sylla. And Caesar, after the Battle of Pharsalia, gave Pompey's Camp to be pillaged by the Soldiers; and Lucan9 introduces him speaking thus,
So the Soldiers of Octavius and Anthonyd plundered the Camp of Brutus and Cassius. In another civil War the Soldiers of Vespasian being led against Cremona, tho' it was now near Night, made haste to storm the City, fearing lest otherwise the Wealth of the Cremonese should fall to the Share of their Commanders, and Lieutenant-Generals; for they knew well, says Tacitus, that10 The Plunder of a City taken by Storm belonged to the Soldiers, of one surrendered, to the Generals.
6. But upon the Decay of Discipline, the Soldiers had greater Licence of Plundering granted them, upon this Account, lest, before the Danger was over, the Soldiers should leave the Enemy, and fall to plunder,11 which has often caused the Victory to be lost. When Corbulo had taken Volandum, a Castle in Armenia, Tacitus12 tells us, The common People, who did not bear Arms, were publickly sold, the Rest of the Spoil fell to the Conquerors. In the same Author, Suetonius13 encouraged his Soldiers, in a Battle against the Britons, to continue the Slaughter of the Enemy, without any Regard to the Spoil, assuring them, that whenEdition: 1738; Page: [600] the Edition: current; Page: [1356] Victory was fully gained, they should enjoy the whole. Such like Examples we frequently meet with, besides what we have above quoted14 out of Procopius.
7. There are some Things of so small a Value, that they do not deserve to be reserved for the Publick, these generally belong to the Captors, by the Consent of the People: Such, in the old Roman State, were a Spear, a Javelin, Wood Fodder, Casks, Leather Bags, Torches, and any Thing else below the Value of two Pence Halfpeny. For, as Gellius15 informs us, these Things were expressly excepted in the military Oath. Like to this is the Allowance to Seamen that serve even for Pay. The French call it Dépouille, or Pillage, and under it they include Apparel, Gold and Silver, within ten Crowns. In other Places, a certain Part is given to the Soldiers, as in Spain, one While16 the fifth, another Time the third, and sometimes half the Booty, falls to the King; and the seventh, sometimes the tenth, to the General; the Rest belongs to the Captors,17 except Ships of War, which are all the King's.
8. Sometimes the Spoil is bestowed with Regard to the Labour, Hazard, and Charge; as in Italy, the third Part of a Ship taken belongs to the Edition: current; Page: [1357] Proprietor of the victorious Ship, a third to those who had Merchandizes in the Ship, and the other to those that sought against the Enemy. Sometimes it happens, that they who at their own Charge and Danger go upon military Enterprises, do not carry away all the Prize, but some Part is owing to the State, or to him who derives his Right from the State. So in Spain, if any Ship be fitted out upon a private Charge, part of the Prize comes to the King, and part to the Admiral. So likewise by the Custom of France and Holland, the tenth Part belongs to the Admiral, the fifth Part of the Prize being first laid aside for the State. But now it is customary at Land, in the taking of Towns, and in Battles, that every one keep what he takes; but in Excursions, whatsoever is taken, is divided among them that take it, according to the Merit and Dignity of each Person.
XXV. What Use may be made of what has been here said.XXV. What has been said may serve to let us understand, that if in any Nation, not engaged in War, a Dispute arise concerning any Thing taken in War, the Things shall be adjudged to him, whom the Laws or Customs of the People on whose Side he is, and by whose Authority the Things were taken, shall favour. But if nothing can thereby be proved, then by the common Right of Nations, the Thing taken shall be adjudged to the People; if at least it were taken in the Act of War. For it is plain from what we have already said, that what Quintilian all edges for the Thebans,1 does not always prove true, that the Right of War has no Power on that which is reducible to a Trial of Law, and that what is got by Arms can only be kept by Arms.
XXVI. Whether Things taken out of the Dominions of either Party be lawful Prize.XXVI. 1. But whatsoever Things do not belong to the Enemy, tho' found among the Enemies, shall not be the Captor's. For this (as I saida before) is neither agreeable to the Law of Nature, nor was introduced by the Law of Nations. So the Romans, in Livy, tell Prusius,1 If that Land had not been Antiochus' s, itEdition: 1738; Page: [601] could not by Conquest belong to the Romans themselves. But if the Enemy had any Right annexed to the Edition: current; Page: [1358] Possession of the Things, as of Pledge, or2 Retention, or Servitude, that is no Hindrance that it should not be the Captors.
2. This is also disputed, whether Things or Persons taken without the Territories of either Party engaged in the War, belong to the Captors. If we only respect the Right of Nations, I think the Place here can be no Security, as we have said, we may lawfully kill an Enemy any where. But the Sovereign of that Place may, by his Laws, prohibit it; and, if they will not obey him, may demand Satisfaction, as for an Insult on his Authority: Just as, according to the Roman Lawyers,3 the Proprietor of a Ground may hinder any one from coming to hunt there, tho', when one does so, the Beasts taken belong to the Hunter.
XXVII. How proper is this Right to a solemn War.XXVII. But this external Right of acquiring Things taken in War, is by the Law of Nations so peculiar to a1 solemn War, that it has no Force in other Wars. For in other Wars between Foreigners, a Thing is not acquired by Vertue of the War, but in Satisfaction of some Debt, which otherwise could not be recovered. But in civil Wars, whether they be great or small, there is no Change of Property but by the2 Sentence of a Judge.Edition: 1738; Page: [602]
I. All Prisoners in a solemn War are, by the Law of Nations, Slaves.I. 1. There is no Man by Nature Slave to another, that is, in his primitive State considered, independently of any human Fact, as I havea said in another Place; in which Sense we may take the Lawyers, when they say that Slavery is1 against Nature, but it is not repugnant to natural Justice, that Men should become Slaves by a human Fact, that is, by Vertue of some Agreement, or in Consequence of some Crime,b as we have also said already.
2. But by the Law of Nations, which I am now treating of, Slavery is of a more large Extent, both as to Persons and Effects. For if we consider the Persons, not only they who surrender themselves, or submit by Promise to Slavery, are reputed Slaves; but all Persons2 what so ever taken Edition: current; Page: [1361] in a solemn War, as soon as they shall be brought into a Place whereof the Enemy is Master; as Pomponius3 tells us. Neither is there any previous Crime required, for here every one's Condition is alike, even of those who have unhappily been found among the Enemies, upon the sudden breaking out of the War,4 as I have said already. Polybius, of the Perfidy of the Mantineans, speaks thus,5 What must these Men suffer, to make their Punishment just? If any one say, they should be sold, with their Wives and Children, as Prisoners of War; but so may they be, by the Law of Arms, who are most innocent. And hence it is, as Philo6 observes, Many good Men lose their natural Liberty by divers Accidents.
3. Dion Prusaeensis, recounting the several Ways of acquiring Property, says,7 The third is, when a Man has taken a Prisoner in War, by that Means he makes him his Slave. So Oppian calls the carrying away of Children Edition: current; Page: [1362] taken in War, Πολέμου νόμον, the Law of Arms. Halieut. Lib. 2.Edition: 1738; Page: [603]
II. And their Posterity.II. Neither do only they themselves become Slaves, but their Posterity for ever; for whosoever is born of a Woman after she is a Slave, is born a Slave: And this is what1 Martian said, that by the Law of Nations those that were born of Bond-Women are accounted Slaves. And Tacitus,2 speaking of the Wife of a German Prince (taken Prisoner) said, she had Servitio subjectum uterum, a Womb subjected to Bondage, that is, her Child would be a Bondslave.
III. Any Thing done to them is unpunishable.III. 1. But the Effects of this Right are infinite, so that there is nothing that the Lord may not do to his Slave, as Seneca1 the Father said, no Torment but what may be inflicted on him with Impunity,2 nothing commanded him but what may be exacted with the utmost Rigour and Severity; so that all manner of Cruelty may be exercised by the Lords Edition: current; Page: [1363] upon their Slaves; unless this Licence is somewhat restrained by the civil Law. It is allowed by all Nations to the Lord, to have Power of Life and Death over his Slave, we are told by Caius,3 (the Lawyer.) He also adds, that this large Power had been limited by the Roman Laws, that is, in Countries which are under the Dominion of the Romans. Hither we may refer that of Donatus upon Teren. What may not a Lord lawfully do to his Slave?
2. Not only the Person, but all Things taken with him, become lawful Prize. A Slave that is in the Power of another,4 Justinian says, can call nothing his own.
IV. The incorporeal Goods of the Slave become the Lord's.IV. Hence the Opinion may be confuted, or at least restrained, which maintains that Things incorporeal1 cannot be acquired by the Law of Arms. It is true, that primarily, and directly, they cannot, but they may be acquired by means of the Person whose they had been. But we must except those Rights that are founded on a particular Relation of Persons, which renders them unalienable, such as paternal Power. For if these Rights are capable of remaining, they remain with the Person,2 if not, they are extinct.Edition: current; Page: [1364]
V. The Reason why this was ordained.V. 1. Now this large Power is granted by the Law of Nations for no other Reason, than that the Captors being tempted by so many Advantages might be in-Edition: 1738; Page: [604]clined to forbear that Rigour allowed them by the Law, of killing their Prisoners, either in the Fight, or some Time after. Asa I said before:1 The Name of Slaves, Servi, (Pomponius tells us) arose from this, that Generals sold their Prisoners, thereby preserving them from Death. I said that they might be inclined to forbear, for there is no Sort of Agreement to engage them to it, if we only respect this Law of Nations, but a Motive drawn from Interest.
2. And for the same Reason he has Power to transfer this Right to another, in the same manner as the Property of Goods. This Power also reaches to the Children born in Captivity, because if the Captor had been pleased to have used his utmost Power, he might have prevented their being born; and consequently those born before the Captivity of the Mother, (if they are not personally taken) do not become Slaves. And the Reason that by the Law of Nations Children followed the Mother's Condition, without regard to that of their Father, is because the Cohabitation of Slaves was neither regulated by the Laws, nor maintained in such a manner, that the Mother should be always under the Eye and Guard of the Father, so that it would have been a very difficult Thing to prove who was the Father. And thus we must understand that of Ulpian,2 The Law of Nature is this, that he that is born without lawful Edition: current; Page: [1365] Marriage should follow the Mother's Quality, that is, general Custom founded on some natural Reason; for so the Expression Natural Right is sometimes taken in an improper Sense, as we have shewedb in another Place.
3. But that this Custom of Nations was not admitted without Reason, we may gather from the Practice of civil Wars, wherein Prisoners are generally put to the Sword, because they cannot be made Slaves, which3 Plutarch well observed in the Life of Otho, and4 Tacitus in the second Book of his History.
4. But whether Prisoners should belong to the People, or to the private Persons who took them, must be determined from what we have said already of the Spoil; for the Law of Nations has in this Case put Men in the same Rank with Goods. So5 Cajus the Lawyer, Those Things which Edition: current; Page: [1366] are taken from the Enemy, by the Law of Nations are instantly the Captors, so also free Men are made Slaves.
VI. Whether Prisoners may make their Escape.VI. 1. I cannot agree with those Divines, who maintain that Prisoners taken in an unjust War, or their Children, may not lawfully make their Escape, unless it be to their own Country. Here is the Difference,1 If they can escape to their ownEdition: 1738; Page: [605] Country during War, they recover their Liberty by the Right of Postliminy: But if elsewhere, or to their own Country after the making of the Peace, they are to be delivered to their Masters upon demand. But it does not therefore follow,2 that the Prisoners are bound in Conscience not to run away, for there are many Rights that have only an external Effect, and impose no internal Obligation, such are those of War, of which we are now treating. Neither can one object, that from the very Nature of Property a real Obligation is laid upon the Edition: current; Page: [1367] Conscience: Because there being many Kinds of Property it may be such an one as has only Power in3 human Judgment and by Compulsion, which is often found in other Kinds of Right.
2. For such in some Sort is also that Right that makes void some Wills, or Testaments, for want of some particular Forms which the civil Law requires. For the more probable Opinion is, that what is bestowed by such a Will, may be retained with4 a safe Conscience, at least, whilst there is no Opposition made to it. And the Right of Prescription, which a dishonest Possessor acquires by the civil Law, very much resembles that we now treat of. For the Courts of Justice maintain such a Possessor,5 as if he were real Proprietor; just as the Law of Nations maintains the Possessors of Prisoners that are taken even in an unjust War. And by this Distinction is solved that difficult Point of Aristotle's,6 Ἄρα δίκαιον τὰ αὑτον̂ ἔχειν ἕκαστον, &c. Is it not just that every one should enjoy his own? But whatsoever the Judge has decreed to the best of his Knowledge, (however unjust his Sentence be) stands good in Law, so that the same Thing may be both just and unjust.
3. But to return to our Question, there can be no Reason supposed, why Nations should have extended the Force of this Right so far as to oblige the Conscience. For the Power of claiming a Prisoner, of forcing him to return, nay, of binding him too, and of taking what he has, is a Motive strong enough to induce the captor to save Life of his Captive; or if he were so barbarous as not to be moved by this Consideration, then certainly he would not be prevailed upon by any Bond of Conscience, but if he think that absolutely necessary,a he may demand an express Promise,7 or a formal Oath.Edition: current; Page: [1368]
4. Besides we must not rashly admit that Interpretation, which makes an Act criminal, which is otherwise allowable, in a Law not arising from natural Equity, but made purposely to avoid a greater Mischief.8 It signifies not much (says Florentinus the Lawyer) how a Prisoner escapes, whether freely dismissed, or by Force orEdition: 1738; Page: [606] Cunning has got out of the Power of his Enemy.9 Because this Right of Captivity is so a Right, that in another Sense it is for the most part even an Injustice; as10 Paulus the Lawyer expressly calls it; a Right as to some Effects, but an Injustice in respect to the Nature of the Thing itself. Whence it is also plain, if any Man taken in an unjust War fall into the Power of his Enemy, he cannot in his Conscience be thought guilty of Theft, if he carries off with him Edition: current; Page: [1369] 11what was his own; or tho' not his own,12 if it were due to him as a Reward for his Labour, over and above his Sustenance; provided that he himself owes nothing to his Master, upon his own, or the publick Account, or to him from whom the Master derives his Right. Neither does it avail to say, that such a flight, and carrying off Goods, when caught, use to be severely punished: For there are many other Things that those Edition: current; Page: [1370] who have the Power in their Hands do for their own Advantage, and not because they are just.
5. But whereas some Canons13 prohibit the persuading a Slave to quit his Master's Service; if that Prohibition relate to those Slaves who are justly punished with Bondage, or have by a voluntary Contract made themselves so, it is then just; but if to them, who are taken in an unjust War, or born of such, it shews only that Chris-Edition: 1738; Page: [607]tians should advise Christians to Patience, rather than to those Acts, which tho' strictly lawful, may give Offence either to Infidels or weak Minds. In like manner we are to understand the Advice of the Apostle's given to Slaves, unless that Advice may seem rather to require of Slaves a faithful Obedience to their Masters, whilst they are with them, which is agreeable to natural Equity, for their Labour and their Maintenance mutually answer one another.
VII. Whether they may resist their Lords.VII. But as the same Divines hold, that a1 Slave cannot resist his Lord in executing that external Right which he has over him without Injustice, I entirely agree with them; but there is this manifest Difference between that external Right, and those Things I said before. That external Right, which consists not in a bare Impunity, but is moreover supported by the Authority of Courts of Justice, would be wholly vain, if on the other Side it were lawful to resist. For if it be allowable for a Slave to resist his Lord, he may2 as well resist the Magistrate that defends his Lord: Since Edition: current; Page: [1371] it is from the Law of Nations that that Magistrate ought to defend the Lord in that Right, and in the Exercise of it. This Right therefore is like that, which we have elsewhere3 allowed to the Chief Magistrate in every State, whom the Subjects can never in Conscience resist. Therefore St. Augustin joins them both together, when he says,4 Subjects should so bear with their Sovereigns, and Slaves with their Lords, that by suffering these temporal Evils with Patience, they may hope for eternal good Things.
VIII. That this Right is not allowed in all Nations.VIII. But this also we must observe, that this Law of Nations concerning Prisoners, has not been at all Times, nor among1 all Nations received, tho' the Roman Lawyers call it General, thus giving the Name of Whole to the most known and most considerable Part. So among the Hebrews, who had peculiar Laws, whereby they were separated from the Commerce of other Nations, there was a Place of Refugea for Slaves, that is, for those (as the Interpreters well observe) who2 became so by their Misfortune, not their Crime; on which that Privilege seems grounded among the French, given to Slaves to enter again on Possession of their Liberty, the Moment they come into the Dominions of that Kingdom, which is also now allowed, not only to those taken in War, but to all others whatever.Edition: current; Page: [1372]
IX. Nor now among Christians, and what is introduced in its stead.IX. 1. But among Christians1 it is generally agreed, that being engaged in War, they that are taken Prisoners, are not made Slaves, so as to sell them or force them to hard Labours, or to such Miseries as are common to Slaves, and that with Reason; for they are, or should be better instructed by the great Recommender of every Act of Charity, than not to be diverted from the killing of unhappy Persons, unless they may be allowed the Exercise of a somewhat less Cruelty.2 And Gregoras declaresEdition: 1738; Page: [608] it is a continued Custom among those of the same Religion, nor was it peculiar to them who lived under the Roman Government, but was common to the Thessalians, Illyrians, Triballians and Bulgarians. And this at least (tho' but a small Matter) is an Effect of the regard Men have to the Christian Religion, which Socrates3 in vain attempted to have introduced among the Grecians.†Edition: current; Page: [1373]
2. And what Christians in this Case observe among themselves,4 the Mahometans likewise do among themselves. Yet even among Christians this Custom still continues, that those taken in War are kept till their Ransom5 be paid, which is set at the Pleasure of the Conqueror, unless it be otherwise agreed upon; but this Right of keeping Prisoners is usually granted to the Captors, except they be Persons of considerable Rank, to whom the State only, or its chief Magistrate has a Right, according to the Custom of most Nations.
I. That Sovereignty, whether in a King, or People, may be acquired by War; and the Effects of such an Acquisition.I. 1. No wonder that he who can bring into Slavery every particular Person of the Enemies Party, that falls into his Hands, (as we have shewn in the preceding Chapter) may1 also impose a Subjection upon the whole Body, whether it be a State, or part of a State; whether that Subjection be merely Civil, merely despotical or mixt. Seneca makes Use of Edition: current; Page: [1375] this Argument in the Controversy De Olynthio,2 heEdition: 1738; Page: [609] had been taken by Right of War; he is my Slave by Purchase. It is your Interest, O Athenians, to maintain me in my Rights: Otherwise your Dominion must be confined within its former Bounds, by restoring what you have gained by War. Wherefore Tertullian3 owns, that Empires are gained by Arms, and enlarged by Conquests. So Quintilian,4 Kingdoms, Nations, the Bounds of Cities and Countries are determined by the Right of War. Alexander in Curtius5 says, that Laws are imposed by the Conqueror, and received by the Conquered. A Favourite (of Antiochus) in his Oration to the Romans,6 Why do you send every Year your Praetor with the Ensigns of Empire, the Rods and Axes, unto Syracuse, and other Greek Cities in Sicily? Truly you can say nothing else, but that having subdued Edition: current; Page: [1376] them by Arms, you impose these Laws upon them. And Ariovistus7 in Caesar's Commentaries says, that by the Law of Arms the Conqueror may govern the Conquered as he pleases. And again, The Romans govern those whom they have conquered, not after the Prescriptions of others, but according to their own Pleasure.
2. Justin tells us out of Trogus,8 that Princes that made War before Ninus, sought not Empire, but Glory, and being contented with the Victory, did not reduce their Enemies under their Dominion. That Ninus was the first who enlarged the Bounds of his Empire, and subdued other Countries by War, and from him it became a Custom. Bocchus argues in Salust,9 That he took up Arms to defend his Kingdom, for that Part of Numidia, from whence he had beaten Jugurtha, was become his own by the Right of War.
3. But Sovereignty may be acquired by Conquest, either so far as it was10 in the King, or another Governor, and then all the Power he had Edition: current; Page: [1377] passes to the Conqueror, and no more. Or11 as it is in the People, and then the Conqueror has the same Right to alienate it as the People had, and thus Kingdoms become patrimonial, as I have said elsewhere, B. I. Chap. III. § 11.Edition: 1738; Page: [610]
II. An Empire may be acquired over the People that is despotical, and then they cease to be a State.II. 1. And yet a Sovereignty may be more absolutely acquired, as that which before was a State may cease to be a State; which may be done, either by adding it to another State, as the Roman Provinces were, or without any such Incorporation, when a King making War1 at his own Charge conquers the People, so as to govern them not for their Profit, but chiefly his own Interest, which is the Character of despotic Power in Opposition to civil Government. Aristotle2 says, There is a Government for the Benefit of the Sovereign, and another for the Advantage of the Subject, the one takes Place among free Men, the other between Masters and Slaves. The People then under this Government, for the future, are not a State, but a Multitude of Slaves; for it was well said of Anaxandrides,3Edition: current; Page: [1378]
2. And Tacitus thus opposes civil Government to arbitrary Power. And Xenophon of Agesilaus, ὁπόσας δὲ πόλεις προσαγάγοττο, &c.4 Whatsoever Cities be subdued, be excused them from all servile Offices, and required no more Obedience than what a free People pay their Prince.
III. Sometimes a mixt Government is acquired.III. And hence we may understand, what a mixt Sovereignty is between the despotick and the civil, namely, when Slavery is mixt with a kind of personal Liberty. Thus we read some People have their Arms taken away, and that they should use no other1 Instruments of Iron, but what were necessary for Husbandry:2 Others forced to change their Language and Method of living.
IV. That even the incorporeal Things may be acquired by War, where is handled a Question concerning the Thessalian Bond.IV. 1. But as the Goods of every particular Prisoner, by the Right of War, belong to the Captors, so the Goods of the People in general belong to the Conquerors, if they please. For what Livy said of those that surrendered Edition: current; Page: [1379] themselves,1 When all Things are given up to the Conqueror, it is wholly in his own Power and will to take what he pleases to himself, and to leave them what he has a mind; the same may be said of those conquered in a solemn War. For a Surrender doth but voluntarily yield up, what would otherwise be taken away by Force. So Scaptius in Livy2 says, That theEdition: 1738; Page: [611] Lands in dispute were Part of the Territory of Corioli, which being taken, by the Right of War, they became then the Romans. And Hannibal in the same Author thus encourages his Soldiers in his Oration before the Battle,3 Whatsover the Romans have by so many Victories got, and heaped up, shall, together with themselves the Masters of it, be ours upon the Victory. And thus4 Antiochus pretended, that Seleucus having subdued all the Dominions of Lysimachus, those Countries belonged to him (Antiochus) as Conqueror of Seleucus. So all that Mithridates had taken in War, and added to his own Dominion,5 Pompey (by beating him) made the Romans.
2. Wherefore even those incorporeal Rights, which belonged to the State, shall become the Conqueror's, as far as he pleases. So upon the subduing Alba, all the Rights of the Citizens werea claimed by the Romans: Whence it follows, that the Thessalians were entirely discharged from the Obligation of an hundred Talents6 which they owed to the Edition: current; Page: [1380] Thebans, when Alexander the Great having conquered the Thebans, had as their Lord by the Right of Conquest forgiven the Debt. Neither is that perfectly true, which Quintilian7 all edges in behalf of the Thebans, that what he takes only belongs to the Conqueror, that the Right which is incorporeal cannot be seized on; that the Condition of an Heir is one Thing, and that of a Conqueror another; because the Right passes to the one, and the Thing to the other: For he that is Master of the Persons, is also of the Things, and of the Rights belonging to them. He that is possessed by another,8 can be in Possession of nothing in his own Name, and when one is under the Power of another,9 he has nothing in his own Power.
3. Yea, tho' the Conqueror leave to the Conquered Jus Civitatis, the form of a State, yet may he take to himself some Rights that belonged to it. For it is in his Power to limit his own Bounty as he pleases. Caesar imitated Alexander, in forgiving a Debtb to the Dyrrachians, which they owed to some of the contrary Party. But here it may be objected, that the War of Caesar10 was not of the same Kind, concerning which this Law of Nations was instituted.
I. The Original of the Word Postliminium.I. 1. As the Lawyers of latter Ages have writ almost nothing reasonably of Things taken from Enemies, so neither have they of the Right of Postliminy. This Subject has been treated of by the old Roman Lawyers somewhat more accu-Edition: 1738; Page: [612]rately, but often times too confusedly; so that the Reader could not well distinguish, what they attributed to the civil Law, and what to the Law of Nations.
2. The Opinion of Servius Sulpicius of the Word Postliminium, is to be rejected, who takes the latter Part of it to be only an Extension of no Signification; but that of Scaevola to be approved, who compounds1 it Edition: current; Page: [1382] of Post,2 that may signify a Return, and Limen, which signifies Frontiers; for Limen, and Limes, differ only in Termination and manner of declining, for they are both derived from the old Word Limus, that signifies oblique, or across, and in the primitive Notion are the same; as Materia and Materies, Pavus and Pavo,3 Contagio and Contages, Cucumis, and Cucumer; tho' afterwards, Limen was particularly applied to the Entrance of private Dwellings, and Limes to that of the Lands of the State. So the Antients called banishing of a Person Eliminare, and Banishment they termed4 Eliminium, thrusting out of their Bounds, or Limits.Edition: current; Page: [1383]
II. Where this Right takes Place.II. 1. Therefore the Right of Postliminy is that which ariseth from a1 return to2 the Frontiers, that is, the Territories of the State. Pomponius3 says, that a Man has this Right of Return, the Moment he enters into any Place, that the State is Master of. Paulus,4 when he is entered our Bounds, or Territories. But from a Parity of Reason, the general Consent of Nations has extended the Thing further, so that this Postliminium (or Right of Return) should take Place, even as soon as a Person (or any Thing capable of this Right) should come safe to our Friends, as Pomponius5 has it in the aforesaid Place; or as Paulus6 explains it by way of Ex-Edition: 1738; Page: [613]ample, to a King in Alliance or Friendship with us; (where Friends,7 or Allies, are not to be taken simply for those with whom we are at Peace, but those who join with us in the same War) unto whom they who shall arrive, are to be safe, as Paulus speaks, upon the publick Account; for it is all one, whether Person, or Thing, escape to these, or to his own Countrymen.
2. But among those who are Friends, but not engaged in the same Party, Persons taken in War, change not their Condition (of Captivity) unless by a special Article and Agreement, as it was stipulated8 between the Romans and Carthaginians, in their second Treaty, that if any of the Friends of the Romans, being taken by the Carthaginians, should escape Edition: current; Page: [1384] into any Ports subject to the Romans, they should obtain their Liberty, the like Provision being made for the Friends of the Carthaginians.9 Therefore the Romans, who being taken in the second Punick War, and sold as Slaves, were come from Master to Master into Greece, could not be admitted to this Right of Postliminy, because the Greeks were Neuters in that War; there was therefore a Necessity of their being ransomed, before they could be set at Liberty. We also read in Homer of several Persons taken in War, sold into such Countries as were at Peace, as Lycaon, Iliad, (Lib. XXI.) and Eurymedusa, Odyss. Lib. VII.
III. That some Things return, and some are recovered by this Right of Postliminy.III. According to the antient Language of the Romans, even free Men were said to be recovered by Right of Postliminy. Gallus Aelius, in his first Book of the Significations of Law Terms, saith, That a free Man who went from one City to another, and afterwards returned to that City, was first said to be recovered by the Right of Postliminy. Also a Slave taken Prisoner, by the Enemy, if he afterwards returns to us, returns to the Obedience of his old Master by Right of Postliminy. A Horse, a Mule, and a Ship, have the like privilege of Postliminy, in postliminii receptu, (thus I judge those three Words with little Alteration may be retained, which Jacobus Cujacius, a Man incomparable for his Study of the Roman Law, would have left out) as a Slave: What kinds of Things do return to us by this Right of Postliminy, the same may return from us to our Enemies. But the modern Roman Lawyers have with more Exactness distinguished two Kinds of Postliminy,1 viz. when we either return, or recover something.
IV. This Right of Postliminy is of Force in Peace andIV. 1. The Opinion also of Tryphoninus1 is allowable, who says this Right of Postliminy takes place in War, or Peace; in a Sense some what different than Pomponius2 expressed it. This Right of Postliminy in Peace (unless Edition: current; Page: [1385] it be otherwise stipulated) belongsa to those who were not overcome in War by force of Arms, but were by their own Misfortune surprized, as found in the Enemies Country, when the War suddenly broke out. But there is no Benefit of Postliminy to the other Prisoners in Time of Peace,3 unless it were comprised in the Treaty of Peace: As the most learned4 Peter Faber judicially corrects that Place of Tryphoninus, not disap-Edition: 1738; Page: [614]proved by Cujacius; the Solidity of which Correction appears, as well by the Reason that follows immediately after, as by the Opposition to what goes before. The Peace was made, and the Prisoners released (saith5 Zonaras) for so it had been agreed upon. So Pomponius,6 If the Prisoner, concerning whom, it was comprehended in the Articles of Peace, that he Edition: current; Page: [1386] might return, should chuse of himself to remain with the Enemy, he shall not afterwards challenge this Right of Postliminy. And Paulus,7 If a Prisoner taken in War, after the making of Peace shall fly Home, and upon the War's breaking out again be retaken, he by this Postliminy returns to him, who in the former War had taken him, unless it be expressed in the Articles of Peace, that the Prisoner should be released.
2. Tryphoninus8 alledges this Reason out of Servius, that the Romans thus behaved themselves to their Prisoners, because they would have them place all their Hopes of returning in their own Valour, rather than in Peace. For as Livy saith,9 Rome in the most antient Times had no Compassion on those that fell into the Enemies Hands. But this Reason being peculiar to the Romans, could not constitute a Rule of the Law of Nations; it might yet be one Motive why they themselves did admit that Custom introduced by other Nations. But this seems to be a better founded Reason, because Kings, and States, who enter into War, desire to have it believed, that their Cause was just in doing it, and theirs unjust who engaged against them: Which whilst both Parties desire to have equally believed, it would not be safe, for others not interested that would live in Peace,10 to engage in the Controversy. Therefore the Nations that are at Peace can do nothing better, than quietly11 to take that to be just, that was done in that War, and so the Prisoners mutually taken in Arms, should be esteemed lawful Captives.
3. But the same cannot be alledged against those who have been unhappily surprized by the sudden breaking out of a War, for no Design Edition: current; Page: [1387] of injuring can be laid to their Charge: Yet it has not been thought unjust to detain them during the War, in order to weaken the Enemies Power; but upon the End of the War, nothing can be offered why they should not be discharged. Therefore it was established by a tacit Consent of Nations,12 that such Prisoners, upon the Conclusion of a Peace,Edition: 1738; Page: [615] should be released,13 as being accounted innocent by both Parties. But that as to other Captives, every one might use the Right which he would be thought to have over them, unless the Articles of Agreement have otherwise provided. Therefore for the same Reason,14 neither Slaves, nor Things taken in War, are restored in Peace, unless expressed in the Articles. Because the Conqueror pretends to have a just Title to them, Edition: current; Page: [1388] which to contradict, were to lay a Foundation for a new War; whence it is plain, that that alledged in Quintilian for the Thebans, is rather ingenious than true; that Prisoners, if they can escape into their own Country, are to be esteemed free, because what is gotten15 by Force, is not to be kept but by the same Force; we have hitherto treated of the Acquisition of the Right of Postliminy in Time of Peace.
4. In Time of War they return by the Right of Postliminy, who16 were free before they were taken Prisoners, but Slaves and other Things are said to be recovered.
V. When a free Man, during the War, may return by this Right of Postliminy.V. He that was free, returns so by this Right (of Postliminy,) if here turns with this Design, to follow the Fortunes of his own People to whom he returns, as Tryphoninus1 has it. For a Slave, in order to become free, ought (if I may so speak) to acquire himself, which he cannot do without willing it. But whether he be retaken from the Enemy by force of Arms, or by Craft made his Escape, it is all the same Thing, as Florentinus2 observes. And so it is likewise, if he be freely3 delivered up by the Enemy. Edition: current; Page: [1389] But what4 shall we say of a Prisoner, who having been sold by the Enemy, is arrived amongst his own People, by passing, as it often happens, from Master to Master? This Controversy is discussed by5 Seneca in the Olynthian, whom Parrhasius bought. For when a Decree was passed by the Athenians, whereby the Olynthians were ordered to be free; he makes this Query, whether by it was meant, that they should become free, or adjudged to be free;6 of which the last is the best founded.
VI. What Right he may recover, and what not.VI. 1. But one that is free, after he is returned to his own Country, does not only become Master of himself, but also of all Things, that he had in any Nation at Peace, whether corporeal, or incorporeal; because as neutral States had reputed the Fact for a real Right, in regard to the taking of the Prisoner, they ought to doEdition: 1738; Page: [616] the same in regard to his release; otherwise they would not act in an equal manner towards both Parties; wherefore he that by Right of Arms is possessed of the Body of a Prisoner, has not an absolute but conditional Right to all Things that belong to him, for it may cease against his Will, viz. if the Captive should return into his own Country; for so he loses his Right to those Goods of his, as he does to his Person, of which they were an Accessory.
2. What if he had alienated those Goods, shall he who derives his Title from him that was Owner of the Prisoner by Right of War, be secured by the Right of Nations, or else shall those Things (alienated) be recovered? I mean those that are in a neutral Country. And here, in Edition: current; Page: [1390] my Opinion, we ought to distinguish between those Things that may be recovered by Postliminy, and those not capable of that Right; which Distinction we shall explain below, so that the former seem to be alienated only so far as they could be alienated, that is, conditionally, but the other,1 simply and absolutely. By Alienation here, I mean such as includes Donation and2 Acceptilation.
VII. All Rights in Regard to him are restored.VII. But as he that returns by Postliminy, recovers the Rights he was possessed of before, so those Rights which one had in Regard to him, are re-established, and deemed to have always subsisted, as if he had never been in the Enemy's Power, as Tryphoninus1 says.
VIII. Why they that yield themselves are not capable of the Right of Postliminy.VIII. Paulus1 justly makes this Exception to this Rule, as it relates to Freemen, They have no Benefit of Postliminy, that being conquered by Arms, yield themselves up to their Enemies. Because all Agreements made with Enemies, by the Law of Nations, are to be punctually observed, as Edition: current; Page: [1391] we shall shew hereafter; neither is Postliminy allowed against them. Therefore those Romans, in Gellius,2 taken by the Carthaginians, did own, that The Right of Postliminy did not belong to them, because they had engaged themselves by Oath. Whence it is well observed by Paulus,3 that during the Time of Truce there is no Postliminy allowed. But Modestinus4Edition: 1738; Page: [617] says, that if they that are delivered up to the Enemy, are engaged by no Covenant,5 or Promise, they may return by the Right of Postliminy.Edition: 1738; Page: [618]Edition: current; Page: [1392] Edition: current; Page: [1393]
IX. How a People may obtain this Right of Postliminy.IX. 1. What we have said of particular Persons, the same may be likewise of Nations, that those that were free, may recover their Freedom, if the1 Assistance of their Allies happen to rescue them from the Power of the Enemy. But if the Body of the People that constitute the State, be dissolved, Edition: current; Page: [1394] it is more reasonable to say,2 that they are not to be esteemed the3 same People; nor the Things formerly belonging to that State to be restored to them by the Law of Nations; because a People, like a Ship, by a Dissolution of the Parts, is entirely destroyed, because its whole Nature consists in that perpetual Conjunction. Therefore the City of Saguntum was not the same, when it was restored to the antient Inhabitants, eight Years after they had been driven out of it. Nor Thebes the same, after the Thebans had been sold by Alexander for Bondslaves. Hence it is plain, that what the Thessalians were indebted in to the Thebans before, was not restored to the Thebans by the Right of Postliminy, and that for these two Reasons. First, Because they were a new People that demanded this Debt; then, because Alexander, whilst he had the Lordship over them, had a Power to alienate that Right, and did really alienate it; besides that a Debt4 is not to be reckoned among Things capable of the Right of Postliminy.
2. What we have said of a State, is not very different from that of the old Roman Law, by which Marriages were dissoluble: Marriage was not reputed to be restored by Postliminy, but to be renewed5 by joint Consent of both Parties.Edition: current; Page: [1395]
X. What Rights have they of the Civil Law, who return by Postliminy.X. 1. By what we have said, one may easily judge what Manner of Right, by the Law of Nations, Postliminy gives to Freemen. But by the Civil Law this very Right, as to what respects those Things that are done within the State, may be restrained by adding some Exceptions, or Conditions, and may be extended to other Profits and Advantages. Thus by the Roman Civil Law,1 Fugitives are excepted out of the Number of those intitled to this Right of Return, even the Sons of Families, over whom the Father, (one would think) should have retained his paternal Power, as a Privilege peculiar to the Romans. But it was thought proper to make this Regulation, because, as Paulus2 says, the Romans sacrificed their paternal Tenderness to the Observation of military Discipline. Agreeable to which,Edition: 1738; Page: [619] says Cicero of Manlius,3 that he strictly maintained the Roman Discipline, to his own personal Sorrow, that he might effectually consult the Safety of the State, in which he esteemed his own included; and that he preferred the Preservation of the General's Authority to the Motions of Nature, and the Affections of a Father.Edition: current; Page: [1396]
2. This also somewhat lessens the Right of Postliminy, which was first enacted by the Athenian4 Laws, and after by the5 Roman, viz. That he that was redeemed from the Enemy, should be Slave to him who had paid the Ransom, till he had reimbursed it. But this seems to have been made in favour of Freedom, lest all Hopes of recovering the Money being lost, many (of the Captives) should be left in the Power of the Enemy. And this very Slavery was much softened by the Roman Laws, and by the last Law of Justinian6 it was limited to five Years Service. Also, upon the Death of the Ransomed,7 the Right of recovering the Money entirely ceased. Likewise, by any Contract of Marriage between the Redeemer and the Redeemed,8 it was adjudged to be remitted; it was also9 lost by the Prostitution of a Woman ransomed. There were also many other Things enacted by the Roman Law, in favour of those that would redeem Captives, and for the Punishment of their Kinsmen that would not redeem them.Edition: current; Page: [1397]
3. This Right of Postliminy was on the other Hand extended by the Civil Law; in that, not only those Things which are capable of being recovered by the Law of Nations, but also all Goods,10 and all Rights in general were preserved to a Prisoner that returned, as if he had never been in the Power of the Enemy; this was also the Athenian Law: For as we read in Dion Prusaeensis, fifteenth Oration, A certain Man pretending to be the Son of Callias, and that he had been taken Prisoner, in the Defeat at Acanthus, and had been a Slave in Thrace; when by the Right of Postliminy he returned to Athens, demanded the Inheritance of Callias from the present Possessors of it; and the only Thing he was obliged to do, was to prove that he was really the Son of Callias. The same Author also relates, that the Messenians,11 after a long Time of Slavery, recovered both their Liberty and Country. Nay further, when a Prisoner of War was returned,12 what had been taken from his Goods, either by Prescription, or a13 Disingagement of any Obligation of another, by Vertue of which he might have before demanded any Thing, was re-Edition: 1738; Page: [620]stored to him by a rescissory Action: As well as the Rights that were otherwise deemed extinct by14 Non-Usage: For in the Edict of entirely restoring Ancestors, he is likewise included, who15 is in the Power of the Enemy; and this was established by the antient Roman Law.
4. The Cornelian Law afterwards made Provision for the Heirs of those that died in Captivity with the Enemy, and16 preserved all their Edition: current; Page: [1398] Goods, just as if the Person taken Prisoner died at that very Time. If it were not then for these Civil Laws, the Captive'sa Goods17 would immediately be theirs that seized on them, because he that is taken by the Enemy,18 is reputed as not to be at all. But if a Captive did return, he should receive19 only those Things which, by the Law of Nations, challenge the Right of Postliminy. But that the Goods of a Prisoner, if he have no Heir, should come to the Publick,20 was a Law peculiar to the Romans. We have hitherto treated of Persons who return from Captivity. I will now speak of such Things as are recovered.Edition: current; Page: [1399]
XI. How Slaves are recovered by Postliminy, how Fugitives, and those that are redeemed.XI. 1. Among these are chiefly Slaves of both Sexes, yea1 even those that have been often alienated,2 or have been discharged by the Enemy. Because (as Tryphoninus3 well observes) a Release from the Right of an Enemy ought not to prejudice a Citizen of ours, his former Master. But that the former Master may recover his Slave, it is necessary that he either actually possess him, or that he may easily possess him. Wherefore, tho' in other Things it is sufficient, that they be brought just within our Territories, that will not be enough, in Regard to a Slave, unless also the antient Master know his being there. For he that is in the City of Rome (as it were) incognito, in Paulus's Opinion, is not4 allowed to be yet Edition: current; Page: [1400] reco-Edition: 1738; Page: [621]vered. And as a Slave, in this Case, differs from Things inanimate, so does he likewise from a Freeman in this, that in Order to recover him by Right of Postliminy, it is not required that he should return, with an Intent to follow the Fortunes of the State. For that is only required of him, that is to recover his own Freedom, not of him that is to be recovered by another. And as Sabinus has it,5 Every Man has a free Power to chuse what State he pleases to make himself a Member of, but not to dispose of the Right of Property which we have over him.
2. The Roman Law did not except fugitive Slaves from this Law of Nations; for even in these the Master may recover his old Right, as Paulus6 observes; lest, allowing the contrary, it may be prejudicial, not to him who is still to continue a Slave, but to the Master himself. The Emperors7 (Dioclesian and Maximinian) say in general, and without Restriction, of Slaves retaken in any military Expedition, what some extend without Reason to all Things retaken from the Enemy, that They ought to be Edition: current; Page: [1401] deemed recovered, and not taken, and that the Soldier should be their Deliverer, and not their Master.
3. Those Slaves who are ransomed from the Enemy, by the Roman Law8 become his that redeemed them, but upon laying down their Ransom, they are deemed recovered by the Right of Postliminy. But it belongs to the Civilians to give a more exact Explication of all this. But some Things have been altered by the modern Laws: And, to invite captive Slaves to return, they propose present Liberty to the disabled, and to the Rest, after five Years; as you may see in the military Laws collected by9 Rufus.
XII. Whether Subjects may be recovered by Postliminy.XII. That Question more nearly relates to us, whether a People subjected to a foreign Prince return to their antient State, which may be handled, by supposing that it is not their antient Sovereign, but some Ally, who has rescued them from the Enemy; the same, I think, may be answered,1 as before, of Slaves, unless it be otherwise agreed by the Treaty of Alliance.Edition: 1738; Page: [622]
XIII. That Lands are recovered by Postliminy.XIII. 1. Among Things recoverable by Postliminy, the first to be considered are Lands; It is true (saith1 Pomponius) the Enemy being beaten out of the Lands which they had seized on, the Right of them returns to their former Owners. But the Enemy must be understood to be driven out, when they cannot come thither any more openly as we have explained Edition: current; Page: [1402] elsewhere, (Ch. iv. of this Book, § 4.) Thus the Lacedemonians restored the Island Aegina, recovered from the Athenians2 to the antient Lords. So3 Justinian, and other Emperors, restored the Lands recovered from the Goths and Vandals, to the Heirs of the antient Possessors,4 not admitting those Prescriptions against them, which the Roman Laws had introduced.
2. What I have said of Lands takes Place also, in my Opinion, in Regard to all Rights annexed to those Lands. For even Places taken by the Enemy, which had been sacred or religious, when freed from that Misfortune, return as it were by a Kind of Postliminy to their former State, as5 Pomponius decides. Whereto agrees that of Cicero, in his Oration against Verres, concerning Diana6 of Segesta, She recovered her Worship and Habitation by the Valour of Publius Africanus. And Marcianus7 compares that Right to the Right of Postliminy, by which, a Place of the Shore being built upon, when the Building is fallen, makes again Part of the Shore. Upon this Principle it must be8 said, that the Profits Edition: current; Page: [1403] of the Land recovered are to be restored; like to what Pomponius delivers of Lands that had been9 drowned. So it is provided by the Laws ofa Spain, that Counties, and other hereditary Jurisdictions, shall return by Postliminy; the greater absolutely, the less if within the Space of four Years they be claimed after their Recovery, unless it be a Castle, or Fort, lost by War, and recovered again in what Manner soever, the King then hath Right to keep the Possession of it.
XIV. What Difference was formerly observed in Relation to Moveables.XIV. 1. Concerning Moveables, the general Rule is directly contrary, that they do not return by Postliminy, but make Part of the Spoil; for Labeo1 opposes those two Ideas. Therefore, when such Things pass from the Enemy to others by Commerce, where soever they are found, they are allowed to be his who bought them; neither has the first Owner2 any Edition: current; Page: [1404] Power to claim them, either amongst3Edition: 1738; Page: [623] a neutral People, or in his own Country. But from this Rule we find of old excepted, Things that were useful in War; which seems to have been generally allowed by all Nations, for this Reason, that the Hope of recovering them might render Men more willing to provide them: For the Laws and Views of most States at that Time, had Respect to warlike Affairs, and therefore they easily agreed in this. We have already mentioned, out of Gallus Aelius,4 what Things were esteemed useful in War; but they are more exactly set down, both by Cicero5 in his Topicks, and in Modestinus,6 viz. Men Edition: current; Page: [1405] of War and Merchant Ships, but not Gallies and Pleasure-Boats; Mules, but only those used to the Pack-Saddle; Horses and Mares, but only those that will endure the Bit. And these are Things7 which by the Roman Law may be validly bequeathed, and may come into the Division8 of an Inheritance.
2. Arms9 also, and Cloaths, are useful in War, but these returned not by Postliminy, because it was an odious Thing, and was even accounted criminal, for a Man to suffer his Arms or Cloaths to be taken from him, as may be every where found in Historians. And in this, Arms are observed to differ from10 Horses, because the Horse may possibly break loose without the Fault of the Rider. And this Difference of Moveables seems to have been used in the West, even under the Goths, to the Time of Boetius. For he expounding the Topicks of Cicero, seems to speak of this Right, as if it were in full Force to that Day.Edition: 1738; Page: [624]
XV. What the Law now says of Moveables.XV. But in these later Times, if not before, this Difference seems to have been taken away.1 For those skilled in the Customs of Nations do commonly Edition: current; Page: [1406] declare, that Moveables are not recovered by Postliminy,a and we see the same in many Places determined in Relation to Ships.
XVI. What Things are recovered that want not this Right of Postliminy.XVI.[[1]] But those Things (tho' taken by the Enemy) which were not yet brought into Places whereof he is Master, have no Occasion for Postliminy, because they have not yet changed their Owner by the Right of Nations. Also what Pirates and Robbers have taken from us, has no Need of Postliminy, (as2 Ulpianus and Javolenus3 relate) because the Law of Nations has not authorised them to appropriate it to themselves, in Prejudice of the antient Owner; on which Account the Athenians pretended to receive the Island4 Halonesus, which Pirates had taken from them, and Philip from the Pirates, as restored, not given, by Philip. Therefore, Things taken by them, where soever they are found, may be claimed; but, as we have concludeda in another Place, so much must be restored to the Person who got Possession upon his own Charge, as the right Owner would willingly have expended for the Recovery of them.Edition: current; Page: [1407]
XVII. That the Civil Law changes some Things, as to their own Subjects.XVII. But it may be otherwise determined by the Civil Law. As1 by the Laws of Spain, Ships taken from Pirates, become theirs who take them from the Pirates. For it is not unjust that a private Thing should yield2 to a publick Advantage, especially when the Recovery may prove so difficult. But this Law cannot hinder Foreigners from challenging their own.
XVIII. How Postliminy was observed among those that were not Enemies.XVIII. 1. That is more admirable, which the Roman Laws do testify, viz. That this Right of Postliminy took Place, not only between Enemies, but even between Romans and all foreign Nations. But this (as I saida before) was the Reliques of that barbarous Age of the Nomades, wherein the Sentiments of that natural Society that is between all Men were stifled by wicked Customs. Therefore, among Nations which were not actually engaged in a publick War with one another, there was a Kind of War between private Men, authorised and, as it were, declared by Custom; and that such a Licence might not produce many Murders, they agreed to settle Laws of Captivity, which, consequently, introduced that of Postliminy, yet otherwise than with Robbers and Pirates, because those private Hostilities terminated in Conventions, accompanied with a Sort of Equity, which Robbers and Pirates usually despise.Edition: 1738; Page: [625]
2. It seems of old to have been very much disputed, whether any of a confederate Nation, being our Slaves, if they should escape home, might be esteemed to return by Postliminy. For so1 Cicero propounds this Question, in his first Book De Oratore. And Gallus Aelius2 thus gives us his Opinion, We observe the same Right of Postliminy, with a free People, with Allies, and with Kings, as with Enemies. On the contrary Edition: current; Page: [1408] Proculus,3 I doubt not, but that Allies, and a free People are as Strangers to us, there is no Postliminy between us and them.
3. In my Opinion we ought to distinguish between Treaties, that if any were made merely with design to put an End to, or to prevent open War, they could not for the Time to come prevent the taking of Prisoners, or the Right of Postliminy. But if any expressed, that they might on both Sides travel in Safety, from one State to another, upon the publick Faith, then the taking of Prisoners ceasing between these two Nations, the Right of Postliminy ceased also. And Pomponius4 seems to Edition: current; Page: [1409] hint as much, when he says, If there be a Nation, with whom we have neither Friendship nor Hospitality, nor Alliance on account of Friendship, they indeed are not Enemies. But whatever of ours happens to come to them, is theirs. And a free Man of ours taken by them, becomes their Slave; and so from them to us; therefore in this Case also Postliminy is allowed. When he said an Alliance on the account of Friendship, he plainly shews that other Alliances may be made, in which may be neither Tie of Friendship nor Right of Hospitality. And Proculus fully declares, that he takes those to be People confederated, who have reciprocally promised Friendship, and safe Hospitality,5 when he adds, For what need is there of any Postliminy between us? When they also may retain even their own Liberty, and Property of their own Things with us, as freely as among themselves, and so we among them. Therefore that which follows in Gallus Aelius, There is no Postliminy with those Nations, that are under our Government, as Cujacius6 rightly reads it, must be supplied with this Addition, nor with those, with whom we have made an Alliance on account of Friendship.
XIX. When this Right may now be in force.XIX. 1. But in our Days, not only among Christians, but even most of the Mahometans, as this Right of Captivity out of Time of War, so also that of Post-Edition: 1738; Page: [626]liminy is abolished, the Necessity of both ceasing because the Rights of that natural Relation, which is between all Mankind, have been re-established.
2. Yet that antient Right of Nations may still be in Force, if we should have to do with a State so barbarous, as to think it lawful without any manner of Reason, or Denunciation of War, to treat in a hostile Manner the Persons and Goods of all Strangers. And even while I am writing this, it is adjudged in the great Chamber of the Parliament of Paris (Nicolaus Edition: current; Page: [1410] Verdunius being first President)1 that the Goods of the Subjects of France, taken by the Algerines, a Nest of Pyrates that live upon the Spoil of all Sea-faring People, by the Right of War had changed their Owner, and therefore when retaken by others than the antient Proprietors, became theirs that retook them. In the same Cause was this likewise adjudged, (which I said but now) that Ships are not in these Days reckoned among Things recoverable by Postliminy.
I. In what Sense Honour and Conscience may be said to forbid what Law permits.I. 1. I must now reflect, and take away from those that make War almost all the Rights, which I may seem to have granted them; which yet in Reality I have not. For when I first undertook to explain this Part of the Law of Nations, I then declared, that many Things are said to be of Right and lawful, because they escape Punishment, and partly because Courts of Justice have given them their Authority, tho' they are contrary to the Rules, either of Justice properly so called, or of other Vertues, or at least those, who abstain from such Things, act in a manner more honest and more commendable in the Opinion of good Men.
2. Seneca in his Troas1 makes Pyrrhus speak thus,
Agamemnon replies,
By Honour we are here to understand, not so much the Consideration of other Men, and the Care of our own Reputation; as a respect for Equity and Justice, at least a constant Adherence to that which is most Edition: current; Page: [1412] just and most honest; so we read in Justinian's2 Institutions, Feoffments of Trust so called, because they are secured by no Bond of Law, but only the Honour of the Person entrusted. So in Quintilian3 the Father, the reditor cannot (Salvo pudore) with Honour demand his Debt of the Security, but when he cannot get it from the prime Debtor. And in this Sense we often see, Justitia and Pudor, Justice and Honour, joined together.
Hesiod. Oper. & Dior. Ver. 192, 193.
Plato in his 12th Book of Laws,5 παρθένος γὰρ αἰδον̂ς δίκη λέγεταί τε καὶ ὄντως εἴρηται, or rather πάρεδρος. That the Sense may be, Justice is called the Companion of Honour, and that with Reason. And in another Place the same Plato tells us,6 θεὸς, &c. God being solicitous for Mankind, lest they should be entirely destroyed, bestowed upon Men Honour and Justice, the Ornaments of States, and the Bonds of Friendship.7 Plutarch in like manner calls δίκην Justice, ἔνοικον αἰδον̂ς, the Cohabitant of Honour; and in another Place he joins αἰδω̂ & δικαιοσύνην, Honour and Edition: current; Page: [1413] Justice, together. In Dionysius Halicarnassensis8 are named together, αἰδὼς, κόσμος, καὶ δίκη, Honour, Modesty and Justice. So Josephus9 couples together, αἰδω and ἐπιείκειαν, Honour and Equity. Paulus10 the Lawyer unites natural Right and Honour. But Cicero11 thus distinguishes between Justice and Honour. Justice (says he) teaches not to hurt our Neighbour, Honour not to offend him.
3. With the Verse before quoted of Seneca, agrees that Expression of the same Author in his philosophical Writings.12 How small a Matter is it, to be a good Man, only so far as the Laws require? How much larger is the Rule of Duty than of Right? How many Things does natural Affection, Humanity, Liberality, Justice and Faith demand? Which are all beyond the reach of the civil Laws. Where one may see he puts a Difference between Jus, and Justitia, Right and Justice. He means by Right, that which is Edition: current; Page: [1414] actionable in Courts of Judicature. The same Seneca excellently explains this in another Place, by the Example of a Master's Right over his Slaves.13 As to our bond Servants we must consider, not what we may without Danger of the Law put upon them, but what the Nature of Equity and Honesty would allow, which obliges us to be merciful to our Prisoners, and those purchased with our own Money. Further, Indeed every Thing is lawful with regard to a Slave,Edition: 1738; Page: [628] considered as such: But there are some Things which are not lawful with regard to a Slave, considered as a Man, according to the common Right of Animals. In which Place we may observe the double Meaning of the Word lawful, the one being taken for that which is really lawful in itself, the other for that which is only lawful externally.
II. This applied to what is allowed by the Law of Nations.II. 1. To the same Intent is the Distinction of Marcellus in the Roman Senate,1 Not what I have done is here to be debated, since the Right of War justifies whatsoever I have done against the Enemies, but what they ought to have suffered, viz. in Reason and Equity. Aristotle disputing the Point, whether Slavery arising from War may be esteemed just, hints at this Distinction.2 Some having in View a Sort of Right, that is, the Law which Edition: current; Page: [1415] is certainly3 something just, maintain that Captivity in War is just, but they do not say it is absolutely just, because it may so happen that the War may proceed from an unjust Cause. Agreeable to this is that of Thucydides4 in the Oration of the Thebans, For those ye killed in Fight, it is not so much a Grievance to us, what they suffered was by a Kind of Right.
2. So also the Roman Lawyers themselves, what they often call the5 Right of Captivity, in another Place call an Injury, and oppose it to natural Equity; and Seneca6 says the Name of a Slave arose from Injustice, having a respect to what often happens. The Italians also in Livy,7 retaining what they had taken from the Syracusians in War, are called obstinate in keeping what they had unjustly gotten. Dion Prusaeensis having declared, that when Prisoners return Home, they recover their Liberty, adds this,8 ὡς ἀδίκως δουλεύοντας, As being unjustly enslaved.
3.9 Lactantius speaking of the Philosophers says, When they dispute of Duties relating to military Affairs, they reason not according to the Principles of Justice and true Vertue, but adapt their Precepts to the common Edition: current; Page: [1416] Practice and Customs of civil Life. He says afterwards, that the Romans10 acted unjustly by Law.
III. What is done in an unjust War is unjust in itself.III. We then first declare, if the Cause of the War be unjust, tho' it be undertaken in a solemn Manner, yet all the Acts of Hostility done in it are unjust in themselves. So that they who knowingly do these Acts, or join in the acting of them, Are to be accounted in the Number of those, who without Repentance cannot enter into the Kingdom of Heaven, 1 Cor. vi. 10. But true Repentance, if Opportunity and Ability will allow, absolutely requires1 that he who has done any Da-Edition: 1738; Page: [629]mage, either by killing, ravaging or plundering, should make full Restitution. Therefore GOD himself declares their2 Fasts to be unacceptable to him, who detained their Captives unjustly taken. And the King of Nineve, (Jonah iii. 8.) proclaiming a Fast to his Subjects, commands them all to restore what they had taken by Rapine; acknowledging, by the Guide of natural Reason, that all Repentance without such a Restitution would be but pretended, and to no Purpose. And not only the3 Jews and Christians are of this Opinion, but even thea Mahometans themselves.
IV. Who are hereby obliged to make Restitution, and how far.IV. But the Authors of War, whether by their Authority, or Counsel, are obliged to make this Restitution, according to what we have declared in generala elsewhere, for all those Damages which are the usual Consequences of War; and for what are unusual, if they either contributed to them by Command or Advice, or not prevented them, if it was in their Edition: current; Page: [1417] Power to have done it. Thus are Generals and Officers also obliged to do, in Relation to those Things which have been committed by those under their Command. The Soldiers, who have concurred in an Act of Hostility committed in common, as the burning of a Town, are each responsible for1 the whole Damage. But if the Damage has been caused by the distinct Acts of several, each shall be answerable for the Mischief, of which he has been the sole or partial Cause.
V. Whether Things taken in an unjust War, are to be restored by the Captor.V. 1. Neither can I allow the Exception, which some make of those that serve under others, that they are only responsible for the Damage, when there is on their Part1 some Fault accompanied with Fraud. For the bare Fault, without bad Intention, is sufficient to engage to a Restitution. Edition: current; Page: [1418] There are some who seem to think, that Things taken in a War, tho' its Cause were really unjust, are not to be returned; because both Sides, when they engaged in the War, were supposed to have granted them to the Captors. But it cannot be easily presumed, that any Man will rashly part with his Right, and War in itself is far different from the Nature of Contracts. But that neutral Nations might know what to do, and might not be forced into a War against their Wills, it was judged sufficient to introduce this external Right of Property, (which we have mentioned before) which may be agreeable with the internal Obligation to Restitution. And indeed those very Authors seem to allow as much concerning the Right over Prisoners of War. Wherefore the Samnites in Livy2 say, We have restored the plundered Goods of our Enemies, which by the Law of Arms seemed to be ours; seemed only, he saith, because that War was unjust, as the Samnites had before acknowledged.Edition: 1738; Page: [630]
2. Not much unlike this, a certain Power arises from the Law3 of Nations in a Contract made without Fraud, wherein there is an Inequality, to force the Contracter to perform his Contract; Nevertheless he that stipulates more than his Due, is obliged in Honesty and Conscience to reduce it to a fair and just Equality.
VI. Whether by him also that detains.VI. 1. But further, tho' a Man has not done the Damage himself, or if he did it without any Fault of his,a but yet keeps in his Possession1 a Thing taken away by another in an unjust War, he is obliged to restore it; because there can be no Reason produced naturally just, why the other should be deprived of it. There is neither a Consent on his Part, nor an Occasion of Punishment, nor a Compensation to make. Not unlike to this is that of Valerius Maximus.2 The People of Rome, saith he, when Edition: current; Page: [1419] P. Claudius publickly sold some Camerine Prisoners taken in the War, when he was General, tho' they found their Treasury filled with the Money, and the Borders of the Empire enlarged, yet because they were not fully convinced of the Justice of that Expedition, they with utmost Diligence having sought out the Prisoners, redeemed them, and restored them their Lands. Thus by the Decree of the Romans, even their publick Liberty was restored to the3 Phocians, and also their Lands, which had been taken from them: And afterwards the4 Ligurians, who had been sold by M. Pompilius, (their Ransom being paid to the Purchasers) were restored to their Liberty, and their Goods carefully returned. The Senate5 decreed the same in favour of the Abderites, adding this Reason for it, because the War made upon them was unjust.
2. Yet may the present Possessor, whatsoever Charge or Pains he has been at, lawfully deduct as much, as the Proprietor would willingly have expended to have recovered his endangered Possession, according to the Principles we have before laid down. But if the Possessor of it, without any Fault of his, has either wasted or alienated it, he shall not be obliged to refund, further than he shall be thought to have been made richer by it.
I. That some Acts in a just War, are unjust in themselves.I. 1. But that is not to be allowed in a just War, as is commonly said,
But Cicero has it better, There are certain Duties to be observed even towards those that have wronged us,2 for there is a Moderation required in Edition: current; Page: [1421] Revenge and Punish-Edition: 1738; Page: [631]ment. The same Author commends the antient Times of the3 Romans, when the Ends of their Wars were either mild, or rigorous, merely through Necessity. Seneca4 calls those cruel, who having a just Cause to punish, have no Moderation in it. Aristides saith,5 It is possible that they may be unjust, who only revenge a Wrong done to themselves, if they go beyond Moderation; for he that in this Act shall exceed just Bounds, renders himself culpable in his Turn. Thus in Ovid's6 Opinion, a certain King,
The Plateans in an Oration of Isocrates demand,7 If it be just, thus for such slight Trespasses to exact rigorous Punishments. And the same Aristides in his second Oration for Peace, saith, Consider not only the Reasons for Edition: current; Page: [1422] punishing, but also the Persons to be punished, who we ourselves are, and what is the just Measure of Punishment. Minos is commended in Propertius:
And in Ovid,9
II. Who may be killed with a safe Conscience.II. 1. But when it is just to kill (for there we must begin) in a just War according to internal Justice, and when not, may be plainly understood from what I have said in the first Chapter of this Book. For a Man may be killed either designedly, orEdition: 1738; Page: [632] without a direct Design. No Man can be justly killed with Design, unless for a capital Crime, or because we cannot really secure our Lives and Estates without doing it. Tho' that very Thing, to kill a Man on account of our Estates, which are frail and perishable Goods, is not repugnant to Justice strictly taken, yet is it far wide from1 the Law of Charity. But that the Punishment may be just, it is absolutely required, that he who is killed should have rendered himself culpable, and that in so heinous a Manner, that before an upright Judge he should be condemned to die. Of which we shall here say the less, because we have fully explained already, in the Chapter concerning Punishments, whatever is necessary to be known on this Head.Edition: current; Page: [1423]
III. No Man can be justly killed for his Misfortunes, as they that are forced to follow a Party.III. 1. Above,a when we treated of Suppliants, (for there are such both in Peace and War) we distinguished between the unfortunate and culpable. Gylippus in that Place of Diodorus Siculus, which I there quoted, asks this Question,1 in what Class the Athenians ought to be reckoned, either of the unfortunate or the unjust. And he declares, they cannot be ranked among the unfortunate, because voluntarily without any manner of Provocation, they had made War on the Syracusans: When ceheinfers, since they had freely begun a War, they must expect to undergo the Miseries of that War. They are to be esteemed unfortunate who happen to be in the Party of one of the Enemies, without any hostile Disposition towards the other Party, as the Athenians in the Time of Mithridates, of whom thus speaks Velleius Paterculus,2 If any one should charge the Athenians with Rebellion, at the Time (when Athens was besieged by Sylla ) he is very ignorant both of Truth and antient History. For the Fidelity of the Athenians was so firm to the Romans, that always, and upon all Occasions, whatsoever was done with a singular Honesty, the Romans used proverbially to say, it was done Athenian like. But then being oppressed by the Forces of Mithridates, they were reduced to a most miserable State, whilst they were within enslaved by their Enemies, and besieged by their Friends, whilst their Hearts were without the Walls, but their Bodies in compliance with Necessity, were within. Which last Part seems to be taken out of Livy,3 in whom Indibilis the Spaniard declares, that his Body only served the Carthaginians, but his Mind the Romans.
2. For, saith Cicero,4 all those whose Lives are in the Power of others, often consider what they can or may do, at whose Mercy they lie, rather than what they ought to do. So says the same Cicero5 for Ligarius, It is the third Time that he continued in Africk after the coming of Varus, which if it be a Crime, it is of Necessity not of Will. And Julian took this course in the Edition: current; Page: [1424] Case of the Aquileians, as Ammianus6 testifies, who when he had ordered the Punishment of a few, adds, he let the others Escape, as whom Necessity, not Choice, had forced into Arms. Thus says an antientb Commentator on that Place of Thucydides, of the Corcyrean Captives that were sold. It was an Act of Clemency, worthy of the Greeks, for it is inhuman to killEdition: 1738; Page: [633] Prisoners after the Battle is over, especially Slaves, who Edition: current; Page: [1425] do not fight of their own Choice. The Plataeans thus argue in the aforesaid Oration of Isocrates,7 We did not serve them willingly (the Lacedemonians ) but were forced to it. And so for the other Grecians, They were forced with their Bodies to join with them, but their Hearts were with you. Herodotus8 also says of the Phocians, They followed the Medes not voluntarily, but forced by Necessity. Alexander spared the Zeldi, as Amianus relates,9 Because they were forced into the Service of the Barbarians. Diodorus10 makes Nicolaus the Syracusan thus plead for the Captives, The Allies were forced to make War; wherefore as it is but just that they should be punished, who designedly offer the Wrong; so it is equally just to pardon them, who offend against their Will. So in Livy,11 the Syracusans to excuse themselves to the Romans, said, they broke the Peace being oppressed by Fear and Fraud. Thus for a like Reason Antigonus declared,12 That he made War with Cleomenes, and not with the Spartans.
IV. Nor for a middle Fault between Misfortune and Fraud, whose Nature is explained.IV. 1. But it is to be observed, that between an absolute Injury, and a mere Misfortune, there often intervenes something of a middle Nature, as it were composed of both, so that the Action cannot be said to be either entirely of Knowledge and voluntarily, nor purely of Ignorance and against the Will.
2. Aristotle calls this Act ἁμάρτημα, in Latin rendered culpa, a Fault. For thus he says in the 5th Book of his Morals, and the 10th Chapter. Of voluntary Actions, some we do deliberately, others not. They are said to be done deliberately, which are acted by a certain previous Consultation of the Mind; what are otherwise, we say are done unadvisedly. Since then in human Society an Injury may be done three Ways, that which proceeds from Ignorance is termed a simple Fault. As, if a Man should do a Mischief to one whom he did not design to hurt, or what he did not really intend, or not in the manner he intended it, or not with such a View; as if any one did Edition: current; Page: [1426] not think to strike with this Instrument, not this Man, or not upon this account; but it happened otherwise than he proposed to himself: He designed to pinch, not to wound, either not this Person, or not in this manner. Therefore if a Damage happen thus against all Expectation, it is a Mischance; but if it might in some manner have been expected or foreseen, tho' not with an evil intent, it is a simple Fault: For there is some Fault on the Part of the Agent, when the Principle of Action is within him: But when the Principle of Action is without him, he is only unfortunate; but when a Man does knowingly what he does, though not deliberately, it must be acknowledged that an Injury is done: As whatsoever Men may do through Anger, or other like Disturbances of the Mind, either natural, or inevitable; for they who in Passion do Mischief, and yet through their Fault, do certainly commit an Injury, neither yet are they reckoned unjust or malicious. But if a Man should do it deliberately, he is rightly accounted wicked and unjust.
3. Therefore whatsoever is done through Anger, is judged with Reason not to be done premeditately; for he does not begin, who in a Passion does an Injury, but he that provoked that Passion. Hence it is, that when such Cases are tried at Law, the Question frequently turns, not upon the Fact, but upon the Right; for Anger arises from hence, that a Man thinks himself wronged. Therefore the Query is not here, as in Contracts, whether what is complained of be done, or not; for there, unless there be Forgetfulness, one of the Parties must of Necessity be wicked in not performing the Contract, but in this they demand, whether what was done were justly done. Now he that first laid an Ambush, did it not through Ignorance, wherefore no wonder if the one PersonEdition: 1738; Page: [634] thinks himself wronged, and the other not. But even those who commit Injuries without Deliberation, and in Passion, ought to be accounted unjust, when in rendering Evil for Evil, they pass the Bounds of Proportion or Equality; so he is truly just who acts justly with Deliberation, for sometimes a Man may do a just Thing willingly, but not deliberately.
4. But of those Wrongs that are not done voluntarily, some may be pardonable, others not;1 those are pardonable that are done not only by Men Edition: current; Page: [1427] ignorant, but through pure Ignorance also. But if any be done by ignorant Persons, but not through pure Ignorance, yet through some Passion that exceeds the common Bounds of human Nature, they are no wise pardonable.
5. Michael Ephesius interpreting this Passage, as an Instance of what happens contrary to all Expectation, gives us the Case of a Son, who by the opening of a Door, has hurt his own Father: Or of a Man who in a solitary Place trying to shoot, has accidentally wounded a Person; and of that which might have been foreseen, but without any evil Intent, he alledges the Case of a Man shooting at random in a Highway. The same Commentator gives us an Example of Necessity in him, who is obliged by Hunger, or Thirst, to do any Thing. Of natural Passions, in Love, Grief, Fear: He says that one acts through Ignorance, when the Fact is unknown; as if a Man did not know a Woman was married; a Crime is done by a Person ignorant, not through pure Ignorance, when the Right is not known. But this Ignorance of Right may sometimes be excused, and sometimes not; all which well agree with the Opinion of the antient Civilians. There is a Place in Aristotle not unlike this, in his Book of the Art of Oratory: Equity distinguishes between simple Faults and Injuries, and between simple Faults and Mischances; Mischances are those which could neither be foreseen, nor done with an ill Design. Simple Faults, those that might have been foreseen, but not done with an evil Intent; but Injuries, which have been done both designedly; and with a malicious Intent. The Antients have remarked that Homer had a Notion of those different Sorts of Action: And on that Head alledge what the Poet2 relates in the last of his Iliad concerning Achilles.
6. The like Distinction is also in Marcian,3 We offend either purposely, through Passion, or accidentally. Purposely, as a Gang of Thieves do. Through Passion, as when a Man in Drink falls to fighting with Fists or Edition: current; Page: [1428] Sword. Accidentally, as when in Hunting an Arrow levelled at a Deer, kills a Man. Those two which are done purposely and through Passion, Cicero thus distinguisheth, In all Acts of Injustice it is highly to be considered,4 whether they be done by any Perturbation of Mind, which is generally short, and quickly over; or with premeditated Design. For those are much slighter, which are done by some sudden gust of Passion, than they done deliberately and designedly.5 Philo in his Explanation of some particular Laws, says, It is but half a Crime, which is not done deliberately.
7. Of which Kind are those chiefly, which Necessity,6 if it does not justify, yetEdition: 1738; Page: [635] excuses; for as Demosthenes7 argues against Aristocrates, Necessity takes from us the Liberty of examining what we ought to do, or not to do; wherefore such Cases are not to be too strictly searched into by equitable Judges. Which Point the same Author (Demosthenes) handles8 more largely, in his Oration of false Witness against Stephanus. As also Edition: current; Page: [1429] Thucydides, in his fourth Book,9 It is highly probable, that GOD himself is willing to forgive those, who are compelled by War, or otherwise necessitated to do any Thing; for the sacred Altars have been ever allowed sure Places of Refuge for them to fly unto, as have unwillingly offended; and the Name of Crime is given to unlawful Actions, which are committed on purpose, and not to those which extreme Necessity gives Courage to commit. The Cerites in Livy,10 thus address the Romans, That they would construe that a deliberate Act, which was more justly to be called Force or Necessity. And Justin11 says thus, The Act of the Phocians, tho' all condemned it for its heinous Sacrilege, yet it brought a greater Odium upon the Thebans, who perfectly forced them to it, than upon themselves. And this is the Opinion of Isocrates,12 Of him who steals purely to keep himself from starving, he hath Necessity, a good Plea for Pardon. Also Aristides13 says, The Hardness of the Times is some Excuse for those that abandon their Allies. Thus says14 Philostratus of the Messenians, that they did not receive those that were banished from Athens, They could not safely do it, for Fear of Alexander, whom all Greece severely dreaded. And thus we find in Aristotle,15 Half Edition: current; Page: [1430] wicked, but not unjust, nor a Lier-in-wait. Themistius, in his Praises of the Emperor Valens, thus applies these Distinctions to our Purpose,16 You have well distinguished between a real Injury, a Fault, and a Misfortune;17 tho' you are not acquainted either with Plato, or Aristotle, yet you put in practice their Precepts; for you have not judged them worthy of the same Punishment, who were the Authors of the War, and those who afterwards were forciblyEdition: 1738; Page: [636] engaged in it, and those who submitted to him who seemed Master of the Empire. But those you have condemned, those you have corrected, and the last received unto Mercy.
8. The same Author, in another Place, advises a young Emperor. Consider what Difference there is between a Misfortune, a Fault, and a direct Injury; and how it becomes a Prince to forgive the first, chastise the second, and severely punish the third. Thus, according to Josephus,18 did Titus the Emperor punish only the principal in a Crime, μέχρις ἔργου, really; but the Multitude μέχρι λόγου, only by Reprimands. Bare Misfortunes neither deserve Punishment, nor engage us to make any Restitution; but Edition: current; Page: [1431] unjust Actions are obnoxious to both. But the Fault of a middle Nature, as it is liable to Restitution, so often it does not merit Punishment, especially capital. To this we may refer that of Valerius Flaccus.
V. The principal Authors of a War to be distinguished from those drawn into it.V. We meet with frequent Examples in History, of differenta Punishments inflicted on the principal Authors of a War, and those who have been drawn into it (as Themistius observes); Herodotusb relates, that the Grecians took an exemplary Punishment on those who had been the chief Authors of the Thebans Revolt to the Medes. Thus (as Livy tells us)1 the principal Men of Ardea were beheaded. In the same Author,2 Valerius Levinus, having taken Agrigentum, he whipt their chief Leaders with Rods, and then beheaded them, the Rest, and the Prey, he sold. Also, in another Place of the same Livy,3 When Atella and Calusia were surrendered, their Leaders were put to Death. Again, in another Place,4 (he addresses the Roman Senate) Since the chief Authors of this Rebellion are deservedly punished by the immortal Gods, and by you, illustrious Fathers, Edition: current; Page: [1432] what do you intend to do with the innocent People? At last they were pardoned, and their Freedom restored;5 to the End (as he says) where the Fault begun there the Punishment should stop. Eteocles the Argive is highly commended in Euripides,6 because
And the Athenians (as Thucydides relates) repented of their Decree against the Mitylenians,7 That they should destroy the whole City, rather than the principal Au-Edition: 1738; Page: [637]thors of the Revolt. Demetrius is also reported by Diodorus, when he took Thebes, to have put only ten of the chief Leaders to the Sword.
VI. In the very Authors we must distinguish the Causes, whether probable, or improbable.VI. 1. But also in the very Authors of the War, we must distinguish the Causes; for there are some, not indeed just, but yet such as may impose upon Men not really wicked. The Writer to Herennius lays down this as a most just Plea for Pardon,1 If any one who hath offended, did it not out of Hatred or Cruelty, but out of Duty and good Design. Seneca's Wiseman,2 Will let his Enemies go off safe, even sometimes commended, if they were engaged in the War upon honest Grounds, out of Loyalty, according to the Obligations of an Alliance, for their Liberty. The Caerites, in Livy,3 beg Edition: current; Page: [1433] Pardon for their Fault4 in assisting their Kinsmen. The Phocians,5 the Chalcidians, and others, who had aided Antiochus, according to their Treaty, were pardoned by the Romans. Aristides, in his second Leuctrica, speaks of the Thebans, who under the Conduct of the Lacedemonians marched against the Athenians,6 They were indeed engaged in an unjust Action, but with a fair Plea, they did it out of Fidelity to the Lacedemonians.
2. Cicero,7 in his first Book of Offices, says, they are to be pardoned who have not been cruel nor inhuman in the War. Also, that Wars undertaken for the Glory of Empire, are to be managed with less Severity. Thus King Ptolemy signifies to8 Demetrius, that They ought not to make War for every Kind of Reason, but only for Glory and Empire. And so Severus,9 Edition: current; Page: [1434] in Herodian, When we first took Arms against Niger, we had not any specious Pretences of Quarrel against him; but the Empire being the Prize disputed for, both of us with equal Ambition contended for it.
3. That often happens, which Cicero10 observed in the War between Caesar and Pompey. There was a great Uncertainty, the most famous Commanders were not agreed, many could not tell whose Cause was best. And what he also says in another Place,11 Tho' we be guilty of a Failing, through human Frailty, yet we are certainly free from a Crime. As in Thucydides, those Acts are positively declared par-Edition: 1738; Page: [638]donable which are done, Not out of Malice, but through Error. The same Cicero12 says of Dejotarus, He did not engage out of any Hatred to you, but slipt through common Frailty. And Salust,13 in his History, And the common People, more from Example than any Understanding of the Cause, flocked in one after another, and followed the foregoing Leader as the wiser. What Brutus writ of Civil Wars, may not improperly be applied to all Wars,14 We ought to be more severe in preventing them, than ready to discharge our Wrath upon the conquered.
VII. Even to Enemies who have deserved Death, often times the Punishment may rightly be remitted.VII. 1. Even where Justice does not demand it, yet it is often agreeable to Goodness[[,]]1 to Moderation, and a great Soul to forgive. Salust2 Edition: current; Page: [1435] says, that The Romans advanced their Greatness by forgiving. And Tacitus,3 We ought to be as merciful to Suppliants, as implacable against Enemies. But Seneca,4 that It belongs only to wild Beasts, and even such as have no Spark of Generosity, to bite and tear those they have thrown down. Elephants and Lions, after they have slung on the Ground, what resisted them, leave it there, and go away. The Situation of Things is often such that one may say, as it is in Virgil,
2. There is a remarkable Place to the same Purpose, in the fourth Book to Herennius.6 "Our Ancestors well observed, to put no captive King to Death. And why? It would be unjust to abuse that Power which Fortune hath bestowed on us to the Destruction of them, whom the same Fortune, a little before, had placed in the most eminent Station. But, you will say, he brought an Army against us! I now absolutely forget it. Why so? Because it is the Part of a brave Man to hold those his Enemies who dispute with him the Victory, and to consider them as Men, when vanquished; that so Valour may finish the Calamities of War, and Humanity augment the Advantages of Peace. But, you will say again, suppose he had got the Victory, would he have done the same? Why then should you spare him? Because it is my Practice to despise such Folly, not to imitate it." If you understand this of the Romans, (which is very uncertain, since the Author often employs Reasons drawn from foreign Examples, or even such as are fictitious) it is absolutely repugnant to that which we meet with in the Panegyrick of Constantine, the Son of Constantius.7 Edition: current; Page: [1436] "Tho' he be the more prudent Man, who by a Pardon gains the Affection ofEdition: 1738; Page: [639] Enemies, yet he is the more valiant, who treads them under Foot when vanquished. You have revived, O Emperor! that antient Boldness of the Roman Empire, which always put the Generals of the Enemy, whom they had taken Prisoners, to Death. For then the captive Kings, after they had attended the triumphant Chariot of the Conqueror, from the Gates to the Forum, as soon as ever he turned his Chariot to the Capitol, were dragged to Prison, and there put to Death.Edition: current; Page: [1437]
Except only Perseus, who, by the particular Favour of Paulus Aemilius, (to whom he had yielded himself) escaped this severe Punishment. But the Rest, deprived of Life in a Prison, served as a Warning to other Kings, rather to court the Friendship of the Romans, than provoke their Justice." But this Author expresses himself too generally. Josephus indeed mentions the like Severity of the Romans, in the History of Simon Barjora, who experienced it; but he speaks of Generals, such as Pontius the Samnite, not of those who had the Title of Kings. The Meaning of his Words may be taken thus.8 "The Conclusion of the Triumph was when they were come to the Capitol, the Temple of Jupiter, for there, by antient Custom, the Conqueror staid, till he had Notice of the Death of the Enemy's General. It was Simon the Son of Jora, who was led among the Prisoners in triumph: He then having a Halter about his Neck, was hurried to the publick Place, his Keepers also whipping him on: For in that Place it is the Custom of the Romans to put to Death, those that are condemned for capital Crimes. As soon then as it was declared that he was dead, they first offered up Vows, and then Sacrifices." Cicero9 almost writes the same of Punishments, in his Oration against Verres.
3. We have many Examples of Generals thus executed, and some of Kings, as10 of Aristonicus,11 Jugurtha,12 Artabasdus. Yet besides Perseus, Edition: current; Page: [1438] Syphax,13Edition: 1738; Page: [640] Gentius,14 Juba15 and, in the Time of the Caesars, Caractacus,16 and others, escaped this Punishment; whence it appears, that the Romans had Respect to the Causes of the War, and the Manner of prosecuting it; whom yet Cicero,17 and other antient Authors, do acknowledge to have been too cruel in their Victories. Therefore M. Aemilius Paulus, in Diodorus Siculus, well advised the Roman Senators, in the Case of Perseus.18 Tho' they fear not the Power of Man, yet they ought to dread the Divine Vengeance, which is ready to fall on them who insolently abuse their Victories. And19 Plutarch observes, that in the Grecian Wars, the very Enemies refrained all Violence to the Lacedemonian Kings, in Respect to their Dignity.
4. An Enemy then who hath not Respect purely to what human Laws allow, but what is really his own Duty, and what the Rules of Virtue Edition: current; Page: [1439] require, will spare even his Enemy's Life; and will put no Man to Death, unless to save himself from Death, or something like it, or to punish personal Crimes that deserve Death. Nay, and to some of those that deserve it, either from a Principle of Humanity, or some other good Reason, he will either remit all Punishment, or at least the capital Part. The same forementioned Diodorus Siculus20 excellently observes, "The taking of Cities, successful Battles, and other Prosperities of War, are often more owing to Fortune than Valour. But to shew Mercy to the Vanquished is purely the Effect of Wisdom." We read in Curtius,21 "Tho' Alexander had just Reason to be angry against the Authors of the War, yet he forgave them all."
VIII. We must take all possible Care that the Innocent be not, tho' against our Intention, kill'd.VIII. As to Persons who are killed accidentally, and not on purpose, we are to remember what we saida above, that if not for Justice, yet for Pity, we must not attempt any Thing which may prove the Destruction of Innocents, unless for some extraordinary Reasons, and for the Safety of many. Polybius is of the same Opinion, who, in his first Book, thus speaks,1 "It is the Part of a good Man not to prosecute a War to the utmost, against those that are wicked, but only so far, till they have made Satisfaction for, and amended their Crimes, and not promiscuously to involve the Innocent in the Punishment of the Guilty, but, for the Sake of those Innocents, even to pardon the Guilty."
IX. Children to be spared, and Women, unless highly criminal, and also old Men.IX. 1. These general Principles being laid down, it will not be difficult to infer more particular Rules.1 Tender Age must excuse the Child, and her Sex the Wo-Edition: 1738; Page: [641]man, (says Seneca, in his Books against Anger). GOD himself, in the Wars of the Hebrews, even after Peace offered and Edition: current; Page: [1440] Edition: current; Page: [1441] refused, would have Women and Infants spared, (Deut. xx. 14.) only some few Nations excepted by a special Command, against whom the War was not a human War, but a War of GOD, as it was commonly called. And when he ordered the Midianitish Women to be slain for their own personal Crimes, he yet excepted those that were pure Virgins. (Numb. xxxi. 18.) Nay, when he denounced fearful Judgments on the Ninevites, for their enormous Sins, he was pleased to delay the deserved Vengeance, in Compassion of so many thousands, who could not distinguish between Good and Evil. (Jonah iv. 2.) Like to which is that in Seneca,2 Can any one be angry with Children, whose Age as yet understands not the Difference of Things? And in Lucan,3
If then GOD, who, as the Author and Lord of Life, may, without Injustice, take it away when he pleases, and without any other Reason, from Persons of whatsoever Sex or Age, has, nevertheless, commanded, and acted himself towards Women and Children, in the Manner we have now seen; what ought Men (to whom he hath given no other Right over their Fellows, than what is necessary to preserve the Safety and Society of Mankind) to do in this Case?
2. We might add here, first, in Regard to Children, the Judgment of those Nations and Times wherein Justice most prevailed:4 We carry Arms (says Camillus, in Livy) not against that tender Age, which is spared, even at the taking of Cities, but against those who are in Arms. He adds, that this is one of the Laws of War, that is, one of the Rules of natural Right, which take Place here. Plutarch, treating on the same Subject, tell us,5 Good Men observe even some Laws of War. Where, pray observe, he saith Edition: current; Page: [1442] Good Men, that you may distinguish this Right from that allowed by Custom, and which only implies a bare Impunity. So Florus6 says, it cannot in Honesty be otherwise. And Livy has it in another Place,7Edition: 1738; Page: [642] Which Age the Enemy, tho' highly provoked, should spare. And again,8 Their savage Cruelty and Rage reached even to harmless Infants.
3. There is no Exception here with Respect to Children, who have not as yet the Use of Reason. But as to Women, the Thing takes Place only in general, that is, unless they have committed some Crime which deserves a particular Punishment, or have usurped the Offices of Men. For that is, as Statius expresses it,
The Prefect in the Tragedy, replies to Nero, calling Octavia his Enemy,
And Alexander, in Curtius,11 I use not to make War with Captives and Women. He must be in Arms that I take for an Enemy. So Grypus, in Justin, Edition: current; Page: [1443] 12None of his Ancestors after Victory did ever, in all their Wars, either foreign or domestick, shew Cruelty to Women, whom their very Sex did fully secure from the Hazards of War, and the Fury of the Conqueror. And another, in Tacitus,13 That he never made War against Women, but only those that were actually in Arms against him.
4. Valerius Maximus14 calls the Behaviour of Munatius Flaccus against Women and Children, a barbarous Cruelty, and not fit to be mentioned; Diodorus15 tells us, that the Carthaginians, at Selinus, killed old Men, Women, and Children, without any Manner of Compassion. And in another Place he calls this Act a savage Cruelty. Latinus Pacatus16 stiled Women, A Sex which the Wars spare. And so did Statius of old Men.
X. Priests and Scholars to be spared.X. 1. What we have said (of Women and Children) may be generally said of all Men, whose Manner of Life is wholly averse to Arms.1 By the Laws of War, only those that are in Arms, and do resist, are to be killed, according to Livy, that is, that Law which is agreeable to Nature. So says Josephus,2 It is just that they should suffer by Arms, who have taken up Arms, but the Innocent should not beEdition: 1738; Page: [643] touched. When Camillus Edition: current; Page: [1444] had taken the City of Veii,3 he ordered, that they should not hurt those that were not in Arms. In the first Rank of these ought to be held, those who are engaged in holy Things. For as it was in all Ages the general Custom of Nations to excuse them from bearing Arms,4 so were they excused also from the Violence of Arms. Thus the Philistins, tho' professed Enemies of the Jews, spared the5 College of Prophets at Gaba, as you may find, 1 Sam. x. 5. and 10. And so to another Place where was a like College, as it were set apart and privileged from all Violence, did David flee with Samuel, 1 Sam. xix. 18. Plutarch6 informs us, when the Cretans were engaged in Civil Wars, they mutually forbore all manner of Violence7 to the Priests, and those who had the charge of burying the Dead. To this we may apply the Greek Proverb,Edition: current; Page: [1445]
8 Strabo observes, when all Greece was up in Arms, the Eleans, as sacred to Jupiter, and those that sojourned among them, enoyed a secure Peace.
2. They also have justly this same Privilege, as the Priests, who have embraced a like Sort of Life, as Monks, and9 Lay-Brothers, that is, Penitents, whom the10 Ecclesiastical Canons, according to natural Equity, would have spared equally as Priests. To these we may justly add those who apply themselves to the Study of Sciences and Arts beneficial to Mankind.
XI. And also Husbandmen.XI. Next to these, the Canons1 privilege Husbandmen. Diodorus Siculus2 highly commends the Indians, In their Battles they kill one another (without Mercy)Edition: 1738; Page: [644] but they do not Harm to the Husbandmen, as being necessary for the publick Good. Plutarch says of the antient Corinthians3 and Megareans, None of them would in any wise hurt the Husbandmen. Edition: current; Page: [1446] And Cyrus sends to the Assyrian King,4 He was desirous that Husband men should be secure and indemnified. And Suidas5 says of Belisarius, He was so favourably inclined to Husbandmen, and took such a particular care of them, that whilst he was General, there was no manner of Violence done to them.
XII. Merchants and the like.XII. Next to these the Canon1 includes Merchants, which is not to be understood only of those who sojourn for a Time in an Enemy's Country, but also such as are natural and perpetual Subjects, because the manner of the Life they use is entirely averse from War: And under this Denomination are comprehended all Sorts of Mechanicks and Tradesmen, whose immediate Interest makes them more inclinable to Peace than War.
XIII. And Captives.XIII. 1. That we may come to those that bore Arms, I havea already mentioned that of Pyrrhus in Seneca,1 who said that Honour, that is, a regard to Equity, does not permit us to take away the Life of a Prisoner. We have quotedb a Saying of Alexander to the same Purpose, who allows Captives the same privilege with the Women. We may add that of St. Augustin,2 In fight we ought not to kill the Enemy but through Necessity, Edition: current; Page: [1447] and against our Will. But as Violence is allowable against one that is in Arms, and in a Case of Resistance, so is Mercy due to the Vanquished, or Captive, especially where there is no danger of the Disturbance of the Peace thereby. Xenophon3 reports of Agesilaus, He ordered his Soldiers not to punish their Prisoners as Malefactors, but to preserve them as Men. And we find in Diodorus Siculus, All the4 Greeks in general engaged stoutly against those that resisted, but shewed Mercy to the Vanquished. The same Author also informs us of the Macedonians5 under Alexander, They were more severe to the Thebans, than the Laws of War allowed.
2. Sallust,6 in his History of Jugurtha, speaking of young Men, who were put to Death, after they had surrendered, says, it was done against the Law of Arms,Edition: 1738; Page: [645] that is, against the Law of natural Equity, and the known Practice of all civilized Nations. And we read in Lactantius, Edition: current; Page: [1448] 7They spare the Vanquished, and even in Arms there is room for Mercy. Tacitus commends Primus Antonius and Varus, two Generals of Vespasian, That after the Battle was over, they exercised no Cruelty to any. So Aristides8 says of the Lacedemonians, that They fought vigorously against those who resisted, but shewed Mercy to them when conquered.
The Prophet Elisha asks the King of Samaria this Question about Prisoners of War, Wilt thou kill those whom thou hast taken Captive, with thy Sword, and with thy Bow? 2 Kings vi. 22. In Euripides,9 when one asked in the Heraclidae,
The Chorus answers,
In the same Author Eurystheus the Captive says,
In Diodorus Siculus,10 the Byzantians and Chalcedonians, because they had slain many of their Prisoners, were branded with this Character, They committed Acts of abominable Cruelty. The same Author in another Place calls11 to spare Captives, The Law of Nations. And they who transgress this Law, he says, without doubt, are guilty of a great Crime. Equity teaches us to be merciful to Prisoners, as we mentioned before out of the philosophical Treatises of Seneca.12 And Historians13 highly commend Edition: current; Page: [1449] those, who when the Multitude of their Prisoners has been so great, that the Number would be either chargeable or dangerous, have chose rather to send them all away freely, than to kill them.
XIV. Those to be accepted who surrender upon fair Terms.XIV. 1 For the same Reasons,1 they that either in a Battle, or a Siege, shall demand Quarter, are to be accepted. Wherefore Arrianus2 says, that the Thebans killing of their Prisoners that had yielded, was not done according to the Grecian Custom, οὐκ Ἑλληνικήν σϕαγήν. Likewise Thucydides,3 in his third Book, You received us unto Mercy, who voluntarily, and with Hands listed up, craved a Surrender. And it is the Custom of the Greeks not to put such to Death. And the Syracusan Senators, in Diodorus Siculus,4 tell us, It is the Part of a great Soul to spare a Suppliant. And Sopater5 says, It is the Law to preserve Suppliants in the Wars.
2. In besieged Towns, the Romans observed this Custom before the battering Ram struck the walls. Caesar6 declares to the Aduatici, he would save their City,Edition: 1738; Page: [646] if they surrendered themselves before the Ram touched the Wall; which is still observed, viz. in weak Towns, before Edition: current; Page: [1450] the playing of the Batteries; and in fortified Cities, before the giving of a Storm. But Cicero7 considering not so much what is done, as what ought in Equity to be done, gives his positive Opinion thus: As we ought to take Care of those we conquer, so we should take them into our Protection, who laying down their Arms, surrender to our Generals, tho' our Rams have battered their Walls. The Hebrew Expositors8 observe, that it was a Custom among their Ancestors, when they laid Siege to a Town, not to encompass it quite round, but to leave one Place free for them to escape, that desired to flee, that they might have less Occasion to shed Blood.
XV. They are also to be spared that surrender without Conditions.XV. The same Equity commands us to spare those, who surrender to the Conqueror without Conditions in a suppliant Manner.1 To kill those that have yielded, (says Tacitus) is barbarous. And Salust2 relating how Marius put to Death the young Men of Campsa, who had surrendered, calls it, An Act against the natural Right of War. And the same Author in another Place, He put to the Sword not those that were in Arms, and in Battle, by the Right of War, but the very Suppliants that cried for Mercy. And (as I before mentioned) in Livy,3 Killing of armed Men, and those Edition: current; Page: [1451] that resist, is allowed by the Right of War. And the same Livy again,4 He made War upon those that had submitted, against all Equity and Justice. Nay, the chief Business of a General should be rather to force his Enemies thro' Fear to a Surrender, than to put them to Death. It was highly commendable in Brutus,5 He suffered not his Men to fall on the Enemy immediately, but surrounding them with his Horse, bid his Soldiers spare those who shortly would be their own.
XVI. Provided they were not guilty of some enormous Crime before, and how this is to be understood.XVI. 1. Against these Rules of natural Right and Equity, some Exceptions use to be made, no way just, viz. If it be done by way of Retaliation; if by way of Terror, to frighten others; or if they have been obstinate in their Resistance. But no Man can look upon this enough to justify a Slaughter, who has seriously weighed what has been said before of the just Causes of killing Enemies; For there is no Danger from Prisoners, or from those who have actually surrendered themselves, or desire to do it. That they may therefore be justly put to Death, there ought to be a previous Crime, and that such a one, as an impartial Judge shall think Capital. And so we sometimes see Prisoners, and those that have surrendered themselves, put to the Sword, and their yielding upon Condition to have their Lives spared, not accepted; if they being satisfied of the Injustice of the War,1 have still continued in Arms; if they have2 Edition: current; Page: [1452] abused the Conqueror with slanderous Reproaches, if theyEdition: 1738; Page: [647] have3 broke their Faith, or any other Law4 of Nations, as the Privilege of Ambassadors; or if they have5 deserted their Colours.
2. But Nature doth not allow Retaliation, unless against the personal Offenders; neither is it enough to pretend, that the Enemies are but one entire Body engaged against us, as may easily be understood from what hath been alreadya said concerning the Communication of Punishments. We find in Aristides,6 It is not perfectly absurd, to imitate as just, what we ourselves condemn as wicked and unjust? Wherefore Plutarch7 blames the Syracusans, for putting to Death the Wives and Children of Hicetas, purely because Hicetas had before killed the Wife, Sister, and Son of Dion.
3. The Benefit which may follow from hence, by striking a Terror for the future, does by no Means give a Right to put to Death. But if we are otherwise authorised to put to Death, this Consideration may engage us not to abate of our Right.
4. Further, an eager Desire to maintain our own Party, if the Cause itself be not absolutely dishonest, cannot really deserve Punishment, as the Neapolitans argue in Procopius; or if there were any Punishment due, it could never amount to that of Death, before an equitable Judge. When Alexander had commanded all the young Men8 in a certain Town to be put to the Sword, because they had made an obstinate Defence, he seemed to the Indians to make War like a Robber; whereupon the King Edition: current; Page: [1453] to avoid for the future such Reflections, shewed more Mercy in his Victories. He more honourably spared some Milesians, because they appeared brave and faithful to their own Country, which are the very Words of9 Arrian. When Phyto, Governor of Rhegium, was hurried away to Torments and Death, for stoutly defending his City against Dionysius, he cried out, that he was thus barbarously used, because he would not be tray his Country, and that Heaven would quickly revenge his Death. Diodorus Siculus calls it,10 unjust Punishment. I much approve that Wish in Lucan,11
But we must understand by the Word Cives, not the Inhabitants of this or that Country, but all those who are Members of that great State, which comprehends all Mankind. Much less can the Resentment for a Loss received by War, render the shedding of Blood just and lawful; as we read that Achilles, Aeneas and Alexander, celebrated the Obsequies of their deceased Friends with the Blood of their Prisoners, or those that had yielded themselves; therefore Homer justly expresses it,
XVII. Offenders may be pardoned on account of their Multitude.XVII. But where the Crimes are such, as they really deserve Death, yet the Greatness of a Multitude may be some Plea to mitigate the Severity of the Punishment; a Pattern of which forbearing Mercy we have from GOD himself, whoa ordered a Peace to be offered to the Canaanites, and their Neighbours, tho' notoriously wicked, with the Promise of Life under the Condition of being Tributaries. To this agrees that of1 Seneca, Generals rigorously punish a Soldier, who alone commits any Fault; but where a whole Army is unanimously engaged in a Mutiny, a general Pardon is requisite. What abates then the Anger of a wise Man? The Multitude of Offenders. And in Lucan,2
Therefore (Cicero3 tells us) to prevent the shedding of too much Blood, they brought in the casting of Lots. And Salust4 thus addresses Caesar, Neither does any one provoke you to severe Punishments, or fearful Judgments, which rather tend to depopulate a State, than to correct the Guilty.
XVIII. Hostages to be spared, unless personally faulty.XVIII. 1. From what has been alreadya mentioned, may easily be understood, what is allowable by the Law of Nature concerning Hostages. As it was formerly believed every one had the same Right over his own Life, as over other Things wherein he had a Propriety; and that this Right, by the Consent, either express, or tacit, of the Individuals, was transferred to the State, it was the less to be admired, if Hostages, personally innocent, were (as we1 read) put to Death for the Crimes of their Country, whether by Vertue of their own particular Consent, or of the Publick, which may be inclusive of their own. But since a truer Wisdom has informed us, that GOD has reserved to himself the Power of our Lives, so that no Man can solely by his own Consent bestow upon another a Power either over his own Life, or that of his Subjects. Therefore (as Agathias writes) that good General Narses abhorred putting innocent Hostages to Death, as a brutish and cruel Act. So also have others done; witness the Example of Scipio, who used to say2 that he would severely punish those who had rebelled, but not the innocent Hostages; neither would he take Revenge of an unarmed Person, but of an Enemy actually in Arms.
2. But what our modern Lawyers, and those not in considerable, maintain, thatEdition: 1738; Page: [649] such Agreements are valid, if authorised by Custom, I Edition: current; Page: [1456] allow, if they mean by Right, only an Impunity; which in this Case often comes under that Denomination. But if they suppose, that they who take away a Man's Life, only by vertue of such an Agreement, are really blameless, I am afraid they are both mistaken themselves, and by their own Authority dangerously mislead others. Indeed, if he that comes as an Hostage, is then, or was before, a notorious Offender, or has afterwards falsified his Faith given in weighty Affairs, his Punishment may then be just.
3. Yet when Clelia, who3 not of her own accord, but by the Order of the State, went an Hostage, escaped by swimming over the Tyber,4 The Hetrurian King not only did her no Harm, but even commended her on account of her Bravery: To use Livy's own Words in the Affair.
XIX. All needless Combats to be avoided.XIX. This also is to be added, that all Combats, which are not of Use for the obtaining of Right, or concluding a War, but merely for vain Ostentation of Strength, that is, as the Greeks call it, Rather a show of Strength, than a warlike Action, [[1]] are wholly repugnant to the Duty of a Christian, and Humanity itself. Therefore all Magistrates ought strictly to forbid these Things, for they must render an account for the unnecessary shedding of Blood to him, whose vicegerents they are; Sallust,2 tho' a Pagan, commends those Generals, who purchase Victory with the least Blood. And Tacitus3 writes of the Catti, a People of known Valour, They seldom made Excursions, or had skirmishes with the Enemy.
I. What Spoil is just, and how far.I. 1. That one may destroy the Things of another without the Imputation of Injustice, one of these three Things should necessarily go before. 1. Either such a Necessity as may be supposed to have been excepted in the primitive Establishment of Property. As when a Man, purely for his own Safety, shall throw the Sword of another Person, which a Madman was going to seize on, into a River; yet in that very Case he lies under an Obligation to make Satisfaction for it to the full Value; as I havea shewed in another Place, according to the most reasonable Opinion. 2. Or some Debt arising from an Inequality, that so what is wasted may be reputed, as taken in Satisfaction of that Debt, for otherwise it could not be lawful. 3. Or some Injury, that may merit such a Punishment, or which such a Punishment does not proportionably exceed. For as a judiciousb Divine well observes, there is no manner of Justice, that a whole Kingdom should be laid waste, for the driving away of a few Cattle, or the burning of some Houses. Which is also allowed by Polybius,1 who would not have the Rigour of War be exercised without Controul, but just so far, that Wrongs and Punishments may be equally balanced: And for these Reasons, and with these Limitations, it may be done without Injustice.Edition: 1738; Page: [650]Edition: current; Page: [1458]
2. But unless it be for some Advantage, it would be very foolish to do another a Damage, without any Profit to ones self. Wherefore wise Men always propose to themselves some Advantage thereby, the principal whereof Onosander has observed,2 Let him destroy, burn, and lay waste his Enemy's Country: For the want of Money and Provisions shortens the War, as Plenty lengthens it. To which agrees that of Proclus,3 It is the Duty of a good General to straiten his Enemies as much as possible. And thus says Curtius of Darius,4 He expected that he should be overcome by Famine, having nothing to sustain him, but what he could get by Spoil and Plunder.
3. And that Waste and Desolation cannot be condemned, which quickly forces an Enemy to Peace: This way of making Wars did Halyattes use against the Milesians, the Thracians against the Byzantians, the Romans against the Campanians, Capenates, Spaniards, Ligurians, Nervians, and Menapians. But if we rightly weigh the Matter, such Things are for the most Part managed rather out of Spite than wise Counsel: For very often either those inducing Reasons cease, or there are others more powerful, that advise to the contrary.Edition: current; Page: [1459]
II. No wasting of Things that may be profitable to us, and out of the Enemy's Power.II. 1. This happens first, when we have got such Possession of a Thing belonging to the Enemy, that he cannot any more enjoy the Fruits of it. To which the divine Law1 does properly refer, which allows wild Trees and unfruitful to be cut down, to make Fortifications and Engines of War; but those that bear Fruit to be preserved for Subsistence, giving this Reason, because Trees cannot, as Men may, rise up in Arms against us. Which2 Philo, by a Parity of Reason, extends also to fruitful Fields; Edition: current; Page: [1460] and by a pathetical Fiction introduces the Law itself thus speaking to those who ought to observe it. Why are you angry with Things inanimate, particu -Edition: 1738; Page: [651] larly those that are mild, and yield grateful Fruit? Do they, like Men, discover any hostile (or disobliging) Intentions against you? Do they deserve to be entirely rooted up, for what they do, or threaten to do against you? But they are very beneficial to the Conqueror, and afford a large plenty of Things immediately necessary, and even contribute to our Pleasures; Men do not only pay Tribute, but even Trees, and that of more Value in their proper Seasons, and also such as Man cannot live without. And Josephus3 to the same Purpose says: If Trees could speak, they would cry out, and reproach us with Injustice, for making them suffer the Punishment Edition: current; Page: [1461] of War, who were no Occasion of it. And hence it is, in my Opinion, that the Pythagoreans have derived their Maxim,4 That we ought not to destroy or hurt a cultivated Plant or Fruit-Tree.
2. And Porphyry5 describing the Manners of the Jews (in his fourth Book of not eating living Creatures) esteeming their Custom to be (I suppose) the best Interpreter of their Law, enlarges it even to all Beasts serviceable to Husbandry, for he says Moses commanded to spare also these in War. But their Talmud Writings, and Hebrew Interpreters extend it yet farther,6 declaring that this Law ought to reach to every Thing that may be destroyed without Cause, as the burning of Houses, the spoiling of Eatables and Drinkables. The wise Moderation of Timotheus the Athenian General agreed with this Law, who (as Polyaenus7 relates it) would not suffer a House or Village to be destroyed, or a Fruit-Tree to be cut down. There is a Law also in Plato,8 in his fifth Book De Republica, forbidding to waste Lands or burn Houses.
3. Much less ought it then to be allowed after a compleat Victory. Cicero9 blames the destroying of Corinth, though they had in a gross Manner abused the Roman Embassadors. And in another Place10 he calls that War, horrid, abominable, and spitefully malicious, which was made11 against Walls, Houses, Pillars andEdition: 1738; Page: [652] Gates. Livy much commends Edition: current; Page: [1462] the Mercy of the Romans, at the taking of Capua, that they did not exercise their Cruelty12 on the innocent Houses and Walls, by burning and demolishing them. Agamemnon says in Seneca,
4. Indeed holy Writ informs us, that some Cities were by GOD's especial Command entirely rased, Joshua vi. even against that general Law which we have mentioned, the Trees of the Moabites were ordered to be cut down, 2 Kings iii. 19. But that was not done in Hatred to the Enemy, but in just Detestation of their Impieties, which were either publickly Edition: current; Page: [1463] notorious, or esteemed worthy of such Punishment in the Sight of GOD.
III. If there be probable Hopes of a speedy Victory.III. 1. This will likewise happen, where the Possession is yet in Dispute, if there be great Hopes of a speedy Victory, of which those Lands and Fruits will be the Reward. Thus Alexander the Great, as Justin relates it, hindered his Soldiers from wasting Asia,1 declaring to them, that they should spare their own, and not destroy those Things, which they came to possess. Thus Quintius, when Philip overrun Thessaly, wasting it with Fire and Sword, exhorted his Soldiers (as Plutarch2 informs us) to march thro' the Country, as if it were now entirely their own. Croesus3 advising Cyrus not to give up Lydia to be plundered by his Soldiers, tells him, You will not ruin my Cities, nor my Lands, they are no longer mine, they are now become yours, they will destroy what is yours.
2. They who do otherwise, may apply to themselves the Words of Jocasta to Polynices in Seneca's Thebais.
To the same Sense are the Words of5 Curtius, Whatsoever they did not waste, they owned to be their Enemies. Agreeable hereunto is that which Cicero, in his Letters to Atticus, says against the Design that Pompey had formed of taking his Country by Famine. Upon this Account Alexander the Isian blames Philip (in the 17th Book of Polybius) whose Words Livy6 has thus rendered: Philip dared not engage in a fair Field-fight, nor come to a pitch'd Battle, but flying away burned and plundered Cities; so that the Conquered rendered useless to the Conquerors what should have been the Recompence of Victory. But the old Kings of Macedon did not use to do so, they used to come to a fair Engagement, to spare Cities as much as possible, that they might have the more wealthy Dominion. For it is not a strange Conduct, to make War in such a Manner, that at the same Time, we dispute the Possession of a Thing, we leave nothing for ourselves but War.
IV. If the Enemy can be supplied otherwise.IV. 1. In the third Place, this happens, if the Enemy can be supplied elsewhere, either by Sea or Land. Archidamus in Thucydides,1 in his Speech to dissuade his Subjects the Lacedemonians from a War with Athens, puts this Query, What Hopes had they to succeed in the War, whether, because they excelled in Number of Soldiers, they pretended to waste the Athenian Lands? But consider (says he) they have other Countries under their Dominion, (meaning Thrace and Ionia) and they might easily supply themselves by Sea, with whatsoever they wanted. Wherefore in that Case it were best to protect Husbandry even in the Frontiers of each Side: Which we have lately seen practised in the Wars of the Low-Countries, by paying Contributions to both Parties.Edition: current; Page: [1465]
2. And this is agreeable to the antient Custom of the Indians, among whom, as Diodorus Siculus2 relates, Husbandmen are indemnified and as it were sacred, so that they follow their Labour even close by the Camp, and near the Troops. And he adds, They do not burn the Enemies Lands, nor cut down the Trees. And again, No Soldier will willingly wrong Husbandmen, but esteeming them as common Benefactors, forbear doing them any manner of Injury.
3. Xenophon3 informs us, that it was agreed between Cyrus and the Assyrian King, That the Husbandmen should enjoy Peace, and that War should be made only against those that were in Arms. Thus Timotheus, as Polyaenus4 relates, Let out the fruitfullest Lands of the Country where he had entered with his Army: Nay, (as Aristotle5 adds) sold the very Corn to his Enemies, and with that Money paid his own Soldiers. Which Viriatus also practised in Spain, as Appian witnesseth. And this very Thing we have seen done in the aforesaid Low-Country War, with great Prudence and Profit, to the Admiration of all Foreigners.
4. These Customs do the Canons, which are full of Lessons of Humanity, propose to our Christian Imitation, as being obliged to, and professing more Humanity than others; therefore they6 enjoin us to put not only the Husbandmen beyond the hazard of War, but also their Cattle with which they plow, and their Seed which they carry to the Field; it is undoubtedly for the same Reason that the Civil Law7 forbids Edition: current; Page: [1466] Edition: 1738; Page: [654] to take in pawn any Thing belonging to Agriculture. And it was formerly prohibited among the Phrygians and Cyprians, afterwards8 with the Athenians, and then the Romans, to kill a plowing Ox.
V. If the Things be of no Use for War.V. There are some Things of that Nature, that they can no way contribute either towards the making or maintaining of a War, which Things even common Reason will have spared during a War. To this Purpose is the Speech of the Rhodians to Demetrius, the Taker of Towns, with regard to the Picture of Ialysus (one of the Founders of their Nation) translated by A. Gellius.1 What Reason can you have to desire to destroy so excellent a Piece,† by burning our Houses? For if you vanquish us, and take the City, this Picture will also be entirely your own; but if you are forced to raise the Siege, pray consider, what a Disgrace it will be to you, because you could not overcome the Rhodians, you must needs make War with Protogenes a dead Painter. Polybius2 called it an Act of extream Madness to destroy those Things, which by being destroyed do not weaken the Enemy, nor advantage the Destroyer. Such are Temples, Portico's, Statues, and the like. Cicero3 much commends Marcellus, because he took such a particular Care to preserve all the Buildings of Syracuse both publick and private, sacred and prophane, as if he had been sent with an Army, rather Edition: current; Page: [1467] to defend than take the City. And the same Author4 again, Our Ancestors used to leave to the Conquered, what Things were grateful to them, but to us of no great Importance.
VI. This especially ought to take in Things sacred, or thereto belonging.VI. 1. But as this Maxim ought to be observed in regard to publick Ornaments, for the Reason aforesaid, so more especially in regard to Things dedicated to sacred Uses, for, although these also (as we have saida elsewhere) are in some Sort publick, and therefore by the Law of Nations may be damaged or destroyed with Impunity, yet if no Danger can arise from the preserving of such Buildings, and their Appurtenances,1 the Edition: current; Page: [1468] Reverence due to holy Things may be a sufficient Plea, especially with those who worship the same GOD according to the same Law, tho' they may differ in Opinions and Ceremonies.Edition: 1738; Page: [655]
[[2.]]† Thucydides2 says, it was a Law observed by the Greeks in his Days, When they invaded the Lands of an Enemy, they mutually spared holy Places. When Alba was destroyed by the Romans,3 Livy says the Temples were preserved. And Silius [[4]] in his 13th Book thus writes of the Romans taking Capua.
The same Livy5 tells us, it was objected to Q. Fulvius the Censor, That he had involved the People of Rome in the Crime of Sacrilege, by the Destruction Edition: current; Page: [1469] of Temples, as if the immortal Gods were not the same in all Places, but that they of one Place should be honoured, and adorned with the Spoils of those of another. But Marcius Philippus being arrived at Dius, caused the Troops to encamp near the very Temple of that City, in order to secure it and all that was in it from Hostilities. Strabob writes, that the Tectosages, who with others had robbed the Temple of Delphos, to appease the injured God, did consecrate those Spoils, with some Addition, when they returned Home.
3. To come now to the Christians. Agathias relates, that the Franks spared the Temples of the Greeks, as being themselves of the same Religion with them. Nay, it was customary to save the Persons of Men in respect to Churches, which (not to quote Examples of Heathen Nations, whereof there are many, for Writers6 call this Custom, A Law amongst the Grecians) St. Augustin thus commends7 in the Goths, when they took Rome. The8 Churches consecrated to (the Memory of) Martyrs and Apostles, Edition: current; Page: [1470] in that general Devastation, secured all those that fled to them forEdition: 1738; Page: [656] Refuge, whether Natives or Foreigners. So far the Rage of the Enemy extended without Controul, but here the Fury of Slaughter stopt; to these Places did the compassionate Soldiers convey their Prisoners, whom they had spared even without the Bounds of these Sanctuaries, from the Fury of their own Companions, that had less Tenderness than themselves; and they who other ways were inhumanly cruel, as soon as ever they came near any of those Places, where they were forbid to make use of their Right of War, immediately restrained their Eagerness to kill, and their Desire of making Prisoners.
VII. Also burial placesVII. 1. What I have said of sacred Things, the same may also be understood of Sepulchres, and even of Monuments that have been erected in Honour of the Dead. For even those (tho' the Law of Nations hath not exempted them from the Fury of the Conqueror) cannot be violated without Breach of common Humanity. The Lawyers maintain1 that whatever engages a religious Respect to burial Places, ought to be of very great Weight. There is a pious Saying of Euripides in his Troades, in regard to Sepulchres, as well as sacred Things,
Apollonius Tyaneus3 thus interpreted the Fable of the Giants fighting against Heaven, ὑβρίσαι εἰς τοὺς νεὼς αὐτὼν, καὶ τὰ ἔδη, That they violated the Temples and Habitations of the Gods. Hannibal is called sacrilegious by Statius,4 for burning the Altars of the Gods.
2. Scipio, at the taking of Carthage, presented his Soldiers with large Donatives, χωρὶς τω̂ν εἰς τὸ Ἀπολλώνειον ἁμαρτόντων, says Appian,5 Except those who had profaned the Temple of Apollo. The Trophy erected by Mithridates, Caesar (as Dion6 relates) durst not demolish, as consecrated to the Gods of War. Marcus Marcellus7 (as Cicero observes in his fourth Oration against Verres) would not out of Conscience touch those Things which Victory had rendered profane. And the same Author8 adds, that there were some Enemies, who in War observed the Right of Religion, and of Customs. And he in another Place calls the Acts of Hostility which Brennus exercised against the Temple of Apollo, an9 abominable War. Livy10 calls the Action of Pyrrhus in plundering the Treasure of Edition: current; Page: [1472] Proserpine, vile and insolent against the Gods. So does Diodorus11 that of Himilco, ἀσέβειαν, καὶ εἰς θεοὺς ἁμαρτημα,Edition: 1738; Page: [657] impious, and sinful against the Gods. The same Livy12 terms the War of Philip execrable, as if made against both the coelestial and infernal Deities; nay, he calls it Madness and a Series of Crimes. And Florus on the same,13 Philip, contrary to the Right of Victory, vented his Cruelty on the Temples, Altars, and even the Sepulchres of the Dead. Polybius14 speaking of the same, passes this Judgment, Who can call it any Thing else but an Act of downright Madness, to destroy those Things which can be of no Advantage to us, nor Prejudice to our Enemies, particularly Temples, Images, and such like Ornaments? And here he doth not permit the Law of Retaliation, as a sufficient Excuse.
VIII. The Advantages mentioned, which arise from this Moderation.VIII. 1. Tho' it be not properly my Design to enquire, what it is advantageous to do or not to do, but to reduce the extravagant Licence of War to what natural Equity allows, or what is best among Things lawful; yet Vertue itself, little esteemed in this Age, ought to forgive me, if, whilst she is by [[sic: for]] herself neglected, I endeavour to render her valuable on the account of her Advantages. First then, Moderation observed in preserving those Things which do not lengthen out the War, takes from the Enemy a powerful Weapon, Desperation. Archidamus thus speaks in Thucydides,1 Look upon the Enemy's Country as an Hostage, and so much the surer the better it is cultivated, and with the more Reason to be spared, Edition: current; Page: [1473] lest Despair should render the Enemy more invincible.2 The same was the Advice of Agesilaus, when against the Opinion of the Achaeans, he gave the Acarnanians free Liberty to sow their Corn, saying, the more they sowed, the more desirous they would be of Peace. And to this Purpose in the Satyr,
Livy tells us, when the Gauls4 had taken Rome, their chief Commanders would not let all the Houses be burnt; that what they left standing of the Town, might be as a Pledge to bend the Minds of the Besieged.
2. Besides, the sparing of an Enemy's Country during a War, looks as if we were pretty confident of Victory. And Clemency is of itself proper to soften and pacify the Minds of Men. Hannibal (according to5 Livy) wasted none of the Lands of the Tarentines, not out of Moderation, either in General, or Soldiers, but to gain the Tarentines to his Party. For the same Reason did Augustus Caesar6 forbear plundering Pannonia. Dion gives the Reason, He hoped to win them without Blows. And Timotheus by doing what we have before mentioned of him, proposed to himself (as Polyaenus7 relates) among other Things, to gain the Affections of his Enemies. Plutarch8 speaking of the Moderation of Quintius, and the Romans that were with him (in Greece) adds this, They quickly reaped the Benefit of this Forbearance, for as soon as he came into Thessaly, the Edition: current; Page: [1474] Cities readily yielded to him. The Greeks also which dwelt within the Thermopylae, earnestly desired his coming; and the Achaeans renouncing the Friendship of Philip, immediately confederated with the Romans against him. Frontinus9 informs us, that a City of the Lingones having escaped the plundering they were afraid of, in the War made by Domitian, underEdition: 1738; Page: [658] the Conduct of Cerealis, against Civilis the Batavian, and his Associates; Because beyond their Expectation, they had lost nothing of their Goods, submitting to his Obedience, they furnished him with 70,000 Men well armed.
3. Contrary Counsels have met with contrary Success. Livy10 gives an Instance in Hannibal, Giving himself up to Covetousness and Cruelty, he destroyed what he could not keep, that he might leave nothing to the Enemy but wasted Lands. And this Counsel was wretched both in the beginning and in the End. For he not only lost the Affections of those whom he thus barbarously used, but of all others also, who were afraid of being exposed to the like Desolation.
4. I readily agree to what has been observed by some Divines, that it is the Duty of supreme Powers, and of Commanders who desire to be thought Christians by GOD and Man, to prevent the merciless plundering of Towns, and the like Acts of Hostility, as cannot be done without infinite Loss to Multitudes of innocent People, and be but of little Advantage in regard to the principal Affairs of War. Such Sort of Violence is almost always contrary to Christian Charity, and commonly to Justice itself. There is certainly a greater Bond among Christians, than there was formerly among the Grecians, in whose Wars it was enacted by a Decree of the Amphictyones,11 that no Grecian City should be pillaged. And some antient Writers12 affirm, that Alexander the Macedonian repented of nothing more than his destroying of Thebes.
I. That so much of the Goods of the Enemies Subjects taken in War, may be detained, as comes to the Value of what is due to us.I. 1. But the taking away of our Enemies Goods in a just War, is not to be reputed wholly innocent, or clear from the Obligation of Restitution. For1 if we respect that which is done rightly, it is not really lawful to take, or keep from the Enemy more than may be justly due from him, except what Things (beyond the same due) we are obliged to detain for our own necessary Security; but when the Danger is over, they are also to be restored, either in Kind, or to the full Value; according to the Principles we have laid down in the second Book, Chap. II. For what we may lawfully do with the Goods of those that are at Peace with us, we may do it much more to those of our Enemy. This then is a Sort of Right to take, without a Right of acquiring.
2. But since a Debt may arise to us, either from the Inequality of Things,2 or by way of Punishment, we may on either of these accounts seize on the Goods of the Enemy, but with some Difference; for as we Edition: current; Page: [1476] saida before, from that former Obligation, not only the Goods of the Debtor, but also those of his Subjects by the allowed Law of Nations (as by way of Surety ship) stand engaged; which Law of Nations we look upon to be of another Kind, than that which consists in a bare Impunity, or of which the Use is maintained and authorised only externally, by the Effect of a Sentence, whether just or unjust. For as by our own personal Consent, our Dealer [[ei qui cum actum est]] does not only acquire an external Right, but also an internal one; (thatEdition: 1738; Page: [659] is, which he may in Conscience make use of.) So also by a certain general Consent, which vertually comprehends in it, the Consent of each Individual. In which Sense the Law is called3 πόλεως συνθήκη κοινὴ, A general Convention of the State. And it is the more probable, that it was thought proper by Nations, that in such a Case, such a Right might be allowed, because this Law of Nations4 was intended, not only to prevent greater Mischiefs, but also to enable every Person to recover his Due.
II. But not for the Punishment of another Man's Crime.II. But, if the Prince's Debt be penal, I do not see that by the Consent of Nations, such a Right is allowed on his Subjects Goods. For such an Obligation upon another Man's Goods is odious, and therefore not to be extended beyond the manifest Intention of those who authorise it.1 Besides, there is no Reason of Utility so weighty, as could have induced Nations to establish in regard to the latter Sort of Debt, what they established Edition: current; Page: [1477] in regard to the former. For that which is due to us on account of any Damage, makes Part of our Goods; but not that which is due to us in form of Punishment; so that the Prosecution of the latter may, without any Damage, be omitted. Neither does what I have alreadya mentioned of the Attic Law at all contradict it: For in that Case Men stood engaged not strictly because the State could be punished,2 but only to force the State to do what it ought to do; that is, to judge the Guilty: Which Obligation founded on a Duty, has Relation to the former Sort of Debt not to the latter. For it is one Thing to be obliged to punish, and another Thing to be liable to Punishment. Tho' this is commonly the Consequence of an Omission about that; but still they are two different Things, since the one is the Cause, and the other the Effect. Therefore the Goods of the Enemies Subjects cannot be acquired under the Notion of Punishment, but only those of Offenders themselves, among whom are included the Magistrates, that do not (according to their Duty) punish Offences.
III. By Debt is here understood the Charges in War. Examples of this.III. Moreover, the Goods of an Enemy's Subjects may be taken and acquired, not only to reimburse ourselves of the primary Debt, which was the Occasion of the War; but also to make Satisfaction for the subsequent Charges, according to what we have said in the beginning of this Book. And thus we must understand what some Divines have written, that Things taken in War are not to be compensated by the principal Edition: current; Page: [1478] Debt. For this is to be understood, till, according to sound Judgment, Satisfaction be made for the Damage done in that War. Thus in the Treaty with Antiochus, the Romans (as Livy1 relates) judged it equitable, that theEdition: 1738; Page: [660] King should bear the Charges of the War, who by his Fault had been the Occasion of it. So Justin2 calls it a reasonable Condition. The Samians are condemned in Thucydides,3 To bear the Charges of the War. And elsewhere we find a great Number of the like Examples. But whatsoever is justly imposed on the Conquered, may be exacted in a just War.
IV. Humanity bids us not use this Right to the utmost.IV. 1. But we must observe, which we have elsewhere mentioned, that the Rules of Charity reach farther than those of Right. He that abounds in Wealth is guilty of gross Inhumanity, if he strip his poor Debtor of all that ever he is worth, by the Rigour of the Law, to satisfy his own Debt; but more particularly, if that Debtor contracted that Debt by his Kindness to another; as if he had engaged for his Friend, but had received none of the Money to his own proper Use.1 Very miserable is the Condition of a Security, says Quintilian the Father. Yet such a hard hearted Creditor acts nothing against Right, properly so called.Edition: current; Page: [1479]
2. Wherefore2 Humanity requires us to spare the Goods of those who are in no Fault concerning the War, and who are no otherwise concerned than by Way of Surety ship, which we may better be without than they; but especially if it appear, that they shall receive no Reparation for them from their own State. Agreeably to this, said Cyrus to his Soldiers, at the taking of Babylon,3 What ye get (from your Enemies) is justly your own, but if you leave them any Thing, it will be an Act of Humanity.
3. This is also to be observed, since this Right of seizing the Goods of innocent Subjects is but Subsidiary, or by Way of Surety ship, as long as there are any Hopes of recovering our own from the principal Debtor, or from those who, by refusing to render Justice, make themselves Debtors, to prosecute those who are wholly innocent, tho' it does not contradict the Rules of strict Justice, yet it is far distant from the Rule of Humanity.
4. Examples of this Humanity are very frequent in History, especially the Roman; as when, upon conquering the Enemy, their Lands were returned to them,4 upon this Condition, that they should from thenceforth Edition: current; Page: [1480] belong to the conquered State. Or when a small Part of those Lands were, for Honour's Sake,5 left toEdition: 1738; Page: [661] the antient Possessors. Thus Livy tells us, that the Veientes6 were punished by Romulus, with the Loss of part of their Lands only. So Alexander the Macedonian restored their Lands to the Uxii under a Tribute. Thus we often read that surrendered Cities were not pillaged. And we said before,a that not only the Persons, but also the Goods of Husbandmen, were by a laudable Custom, and conformable to the Canons, spared, at least with a Tribute laid upon them; and a Liberty of Trade was allowed to Merchants, upon their paying Custom for their Commodities.
I. How far, in Conscience, we may make Prisoners of War.I. 1. In what Places the taking of Men Prisoners, and making them Slaves, is yet allowed, if we respect internal Justice, it is to be thus limited; that is, it may be so far lawful, till Satisfaction be made for the Debt, either principal, or accessory; unless it should happen, that the Persons taken be guilty of such Crimes as may justly forfeit their Liberty. Hitherto therefore, and no further, he that wages a just War, has a Right over the Subjects of his Enemy taken Prisoners, and a Power to transfer it firmly to others.
2. But we are taught by Equity and Humanity to put the like Differences, as beforea observed, when we treated concerning killing our Enemies. Demosthenes, in his Epistle for Lycurgus's Children, highly commends Philip of Macedon, because that he did not make all that were found among his Enemies Slaves.1 For he did not think to use all alike, either just or honest; but duly weighing the Merits of each Person, he acted rather the Judge (than Conqueror).Edition: current; Page: [1482]
II. What may be done to Slaves by the Right of internal Justice.II. 1. But1 we must observe again here, that the Right which arises, as it were,2 from Surety ship for a State, is not of so large an Extent, as that which is derived from the personal Offences of those that are made3 Slaves of Punishment, as they are called. Whereupon a certain Spartan4 said he was a Prisoner, but notEdition: 1738; Page: [662] a Slave. For if we rightly consider the Thing, this general Right over Prisoners in a just War, is not greater than that which a Lord hath over those Slaves, who by Reason of Poverty have sold themselves to him; excepting, that the Case of those is far more deplorable, who are brought into this Condition, not by their own Edition: current; Page: [1483] proper Fact, but by the Fault of their Governors,5 It is a dreadful Thing (says Isocrates) to be made a Slave by the Right of War.
2. This Bondage then is a perpetual Obligation to serve the Master, for a perpetual Maintenance. Chrysippus's6 Definition does very well agree with this Sort of Slaves, A Slave is a perpetual Hireling. And the Law of the Hebrews does directly compare him to a Hireling, who compelled by Necessity, has sold himself for a slave, Deut. xv. 18. Levit. xxv. 40, 53. and will have his Ransom paid by his Labour,7 just as the Fruits of Land sold, shall redeem it for the antient Owner, Lev. xxv. 49, 50.
3. There is then a vast Difference between what may be done to a Slave by the Law of Nations, and what by natural Right. As we have it in the afore-quoted Place of Seneca,8 Tho' it be lawful to do any Thing to a Slave, there is something which the common Right of Animals forbids to be done to the Man. So in Philemon,
So Seneca, in another Place,10 Are they Slaves? Yet they are Men. Are they Slaves? Yet our Companions. Are they Slaves? Yet our Friends. Are they Edition: current; Page: [1484] Slaves? Yet fellow Slaves. And what we read in Macrobius11 has the same Meaning with that of St. Paul, Coloss. iv. 1. Masters, render to your Servants what is just and right, knowing that you yourselves have a Master in Heaven. And in another Place he advises Masters not to terrify them with Threatnings, for the same Reason before-mentioned; Because we have also a Master in Heaven, with whom is no Respect of Persons. Ephes. vi. 9. In the Constitutions attributed to Clemens Romanus, we are advised, Be not too12 severe to thy Man or Woman Slave. Clemens Alexandrinus13 would have us use our Slaves as our second Selves, being Men as well as we; in imitation of that wise Hebrew,14 If thou hast a Servant, use him as a Brother, for he is such a one as thyself.Edition: 1738; Page: [663]
III. It is not lawful to kill an innocent Slave.III. The Power of Life and Death which is ascribed to a Master over his Slave, gives to the former a Sort of domestick1 Jurisdiction; but yet that Power is to be managed with the same Moderation, as do the publick Magistrates. This was Seneca's Meaning, when he said,2 In thy Bondman Edition: current; Page: [1485] consider, not what thou mayest inflict on him with Impunity, but what thou mayest do in Equity and Conscience, which requires that we should be merciful to our Captives and purchased Slaves. And in another Place he says,3 What signifies it what Government one is under, if he be under a Supreme? In which Place he compares the Subject with the Slave, and says, tho' they be under different Titles, yet the4 Authority over them is the same; which is certainly very true, with Respect to this Power of Life and Death, and other Things that resemble it. And again, the same Seneca,5 Our Ancestors reputed every Family a little Commonwealth. Also Pliny,6 A Man's House is a certain Republick, and as a State to his Slaves. And Plutarch7 tells us, that Cato the Censor would not punish any of his Slaves; no not for the most heinous Offences, unless he were found guilty by his own fellow Servants. To which agree the Words of Job, Chap. xxxi. Ver. 13. and so on.
IV. Not to punish unmercifully.IV. But as to lesser Punishments, viz. Blows, &c. Equity, and also Clemency is to be shewed to Slaves.1 Thou shalt not oppress him, nor rule over him with Rigour, says the Divine Law concerning a Hebrew Slave, Lev. xxv. which, as the Title of Neighbour is not now confined to one Nation only, should extend to all Slaves, Deut. xv. 12, &c. On which Place thus Edition: current; Page: [1486] 2Philo, Slaves indeed, as to Fortune are Inferiors, but as to Nature equal with their Masters; and, according to the Law of GOD, the Rule of just is not what comes from Fortune, but what is agreeable to Nature. Wherefore Masters ought not to use the Power they have over their Slaves, to gratify their Pride, Insolence, and Cruelty: For these are not the Signs of a meek and peaceable Spirit, but of a passionate and tyrannical Disposition. SenecaEdition: 1738; Page: [664] puts the Question,3 Is it equitable to exercise a more severe and cruel Authority over a Man, than is generally done over Beasts? but a skilful Manager that designs to break a Horse, does not pretend to do it by frequent Blows, for he will be fearful and headstrong, if he be not gently handled. And again, the same Author,4 What can be more foolish, than to practise that brutish Cruelty upon a Man (that is our Slave) which we should be ashamed to do to Cattle, or Dogs? On which Account the Hebrew Law ordered the Master to let his Bondman or Bondwoman go free,5 Not Edition: current; Page: [1487] only for the Loss of an Eye, but even if he had struck out a Tooth, Exod. xxi. 26, 27. that is, if there had been no just Cause to correct them.
V. Not to lay too hard Labour upon them.V. 1. But1 we are also to enjoin them Labour with Moderation, having a Respect to their Strength and Constitution. To which, among other Things, the Hebrew Law pointed in the Institution of the Sabbath, viz. that all might have some Rest from their Labours, Exod. xx. 10. xxiii. 12. Deut. v. 14. And the Epistle of C. Pliny to Paulinus begins thus,2 I see how gently you treat your Servants, wherefore I will more freely confess to you with what Tenderness I use mine: Always remembering that Expression of Homer, Like a Father he was indulgent to his Slaves, and this our Pater-Familias, the Father of a Family.
2. Seneca3 takes Notice of the Humanity of the Antients, in using that Word, Do you not observe how careful our Forefathers were to prevent all Occasion of Envy to Masters, and Reproach to Slaves? When they called the Master Pater-Familias, The Father of the Family. And his Slaves Familiares, Domesticks. Dion Prusaeensis,4 describing a good King, says, Edition: current; Page: [1488] He is so far from taking a Pleasure in being called Lord and Master of his free Subjects, that he does not willingly receive that Title with Respect to his Slaves. Ulysses declares in Homer,5 That those Slaves whom he found faithful, should be regarded by him as the Brothers of his Son Telemachus. And in Tertullian,6 The Name of Goodness is more glorious than that of Power, and to be called the Father than the Master of a Family. And Hierom, or Paulinus, thus speaks to Celantia,7 So govern and order your Family, that you may seem desirous to be accounted, rather the Mother than the Mistress, and engage your Servants to respect you, rather by Kindness than Severity. And St. Augustine8 makesEdition: 1738; Page: [665] this Observation, Good Parents formerly so managed their Families, that as to temporal Things the Children had the Advantage of the Servants; but as to Affairs of Religion, there was no Distinction. Whence it came to pass, that every Master was called Pater-Familias, which in Time became so customary, that even severe Masters affected that Title. But they who are true Fathers of Families, do take the same Care of their whole Family, in Regard to the Worship and Service of GOD, as of their own Children.Edition: current; Page: [1489]
3. The same Tenderness Servius9 observes to be in the Word Children, by which they meant Slaves, in his Remark upon that of Virgil,
And thus did the Heracleotae call their Slaves Mariandyni,10 Δωροϕόρους, Carriers of Presents; abating the Harshness of the Name of Slave, as Callistratus, an old Interpreter, observed on Aristophanes. Tacitus11 commends the Germans, who treated their Slaves like Husbandmen. And Theana,12 in an Epistle, says, The right using of Slaves is not to over-work with hard Labour, nor enfeeble them for Want of necessary Sustenance.
VI. The Stock of the Slave, how far the Master's and how far his own.VI. 1. As I said before, we are obliged to maintain our Slaves for their Work. Cicero says,1 We are to use Slaves as Mercenaries, by making them do their Work, and paying them their Due. And in Aristotle,2 A Slave's Wages is his Maintenance. And Cato advises,3 Provide carefully for your Family, that it be not starved with Cold or Hunger. There is something, says Edition: current; Page: [1490] Seneca,4 that a Master owes to his Servant, viz. Food and Raiment. Donatus5 writes, that a Slave was allowed four Bushels of Corn every Month, for his Maintenance. And Martianus the Lawyer informs us, that a Master is obliged to provide his Slave6 Cloaths, and the like.7 The Sicilians are blamed in Histories for cruelly starving the Athenian Prisoners.Edition: 1738; Page: [666]
2. Seneca8 also, in the fore-mentioned Place, proves, that in Regard to certain Things a Slave has the same Rights as if he were free, and that he may even become a Benefactor to his Master, by doing for him something beyond the Services he owes him, provided he therein Acts, not through Fear and Constraint, but of his own free Will, and out of Affection; which the Philosopher explains at large. So likewise, if a Slave, (as it is in9 Terence) save any Thing out of his own Belly, or earned ought in his spare Hours, that properly is his own. Theophylus justly defines Edition: current; Page: [1491] the Peculium, οὐσίαν ϕυσικὴν,10 a natural Patrimony, as if you should call the Copulation of Slaves11 a natural Marriage. Ulpian expressly calls the Peculium a small Patrimony.12 Nor does it import much, that his Master may, at his own Pleasure, take it away, or diminish it; for if he does it without Cause he will act unjustly. By a Cause I mean, either by way of Punishment, or for his Lord's Necessity. For the Interest of the Slave ought to give Place to that of the Master, even more than the particular Interest of Subjects to the Interest of the State. Agreeable to this Edition: current; Page: [1492] is that of Seneca,13 It does not therefore follow that a Slave has nothing, because he cannot enjoy it unless his Lord pleases.
3. Hence it is, that the Master cannot demand again any Debt due to his Slave, in the Time of his Slavery, which he pays him after his Release. Because (as Tryphoninus14 says) in a personal Action, the Consideration of a Debt, or no Debt, is understood naturally. And the Master may possibly be a Debtor naturally to his Slave. Therefore, as we read thata Clients have contributed something to the Use of their Patrons, and Subjects to the Use of Princes, so have Slaves15 to the Use ofEdition: 1738; Page: [667] Edition: current; Page: [1493] their Masters. As if a Daughter were to be portioned out, or a Son to be ransomed, or something like it should happen. Pliny,16 as he himself relates in his Epistles, allowed his Slaves the Privilege of making a Sort of Will, that is so far as to distribute, to give, or bequeath within the Family. Among some Nations we read, that even a fuller Right of acquiring Things was allowed to Slaves, as we have beforeb explained, that there are different Degrees of Servitude.
4. And even the Laws among many Nations have reduced the external Right of Masters unto this internal Justice, of which we are now treating. For among the Greeks it was lawful for Slaves, if they were hard used,17 To demand that they might be sold. And at Rome,18 to fly to the Statues (for Refuge) or implore the Assistance of the Governors of Provinces, in Case of Cruelty, Hunger, or intolerable Wrongs. But a Master is not obliged in Rigour to make his Slave free, after a long Service, or a Service whereby the Slave has done for him something of great Importance. If then he grants him his Liberty it is a Favour; tho' this Favour may be sometimes due by the Laws of Humanity and Beneficence. After that Bondage, says19 Ulpian, prevailed by the Law of Nations, the Benefit Edition: current; Page: [1494] of Release likewise was allowed. We have an Example of this in Terence,20Edition: 1738; Page: [668]
Salvian21 declares that it was daily practised, that Slaves, tho' none of the best, yet if they were not arrant Knaves, were presented with Liberty. And he adds, they were allowed to carry away what they had got in the Time of their Service; of which Generosity in Masters we have many Examples in the Martyrologies. And here I must commend the Lenity Edition: current; Page: [1495] of the Hebrew Law, Deut. xv. 13. which absolutely commands, that a Hebrew Slave having served out such a certain Time, shall be set free;22 and that he should not go away empty; the Contempt of which Law the Prophets grievously complain of. Plutarch23 blames Cato the Elder, that he sold his Slaves when they were old, forgetting the common Nature of Mankind.
VII. If Slaves may run away.VII. Here arises a Question, whether it be lawful for a Captive taken in a just War to flee away; I do not mean him who for some personal Fault had deserved that Punishment, but who, by the Fact of the State, has fallen into that Misfortune. According to the most reasonable Opinion he ought not, because, as we have said elsewhere, he is engaged, as a Member of the State, and in its Name, by Vertue of the1 general Convention among Nations; which yet is so to be understood, unless an intolerable Cruelty has forced him to it. You may see the Answer of Gregory Neocaesariensis concerning this Affair.a
VIII. Whether they that are born of Slaves are obliged to the Master, and how far?VIII. 1. We havea in another Place debated the Question, whether, and how far, the Children of Slaves are engaged to the Master by internal Right, which, on the Account of the particular Relation it has to Prisoners taken in War, ought not here to be omitted. If the Parents for their own personal Crimes have deserved Death, their Children, for the saving of their Lives, are obliged to serve, because otherwise they had not been born. For Parents have a Power to sell their own Children for Bondslaves, when they are not able to maintain them, as we have remarked in the same Place. Such a Right did GOD himself give to the Hebrews, over the Posterity of the Canaanites, (Deut. xx. 14.)Edition: current; Page: [1496]
2. But for the Debt of a State, Children already born, as being Members of that State, may be obliged, no less than the Parents themselves. But this Reason cannot hold for those that are yet unborn, but some other is required; as the express Consent of the Parents, joined to the Impossibility of having otherwise wherewithal to keep the Children that are born to them, on which Account they are even authorised to render them Slaves for ever. There may be also a tacit Convention between them and their Master, grounded on the Master's finding Victuals for the Children that are born: But in that Case they engage the Liberty of their Children only till the latter have, by their own Labour, satisfied for those Expences. If any Right beyond this be allowed to the Master over them, it seems to be granted by the Civil Laws, which sometimes give to Masters more than Equity permits.
IX. What may be done where the Bondage of Captives is not in Use.IX. 1. Among those Nations where this Right of Bondage over Captives is not practised, the best Way will be to exchange Prisoners; and, next to that, to release them for a moderate Ransom. Neither can one positively rate the Sum. But common Humanity teaches us, that it should not be so extravagant, as not to leave the ransomed Person the Necessaries of Life. For the Civil Law allows this even to those, who, by their personal Act, are fallen into Debt. In some Places the Price is determined by Cartels, or regulated by Custom, as formerly among the Greeks, the Ransom was a1 Mina, and in ourEdition: 1738; Page: [669] Days a2 Month's Pay. Plutarch Edition: current; Page: [1497] 3tells us, that the Wars between the Corinthians and Megarenses, were waged mildly, and as became Kinsmen. If any one were taken Prisoner, he was entertained by his Captor as a Guest, and, upon his bare Word for paying his Ransom, he was sent Home: Whence came the Name of δορυξένος, a War Guest.
2. But more heroick is that of Pyrrhus, highly applauded by Cicero.4
No Doubt Pyrrhus thought his War just, yet looked upon himself obliged to restore them their Liberty, whom plausible Reasons had engaged against him. Xenophon commends the like Act in Cyrus. And Polybius, that of Philip the Macedonian, after his Victory at Cheronea. Curtius, that of Alexander to the Scythians: And Plutarch observes, of King Ptolemey and Demetrius, that they strove who should prevail in Civility to the Prisoners, as much as in Battle. And Dromichaetes, King of the Getes,a having taken Lysimachus Prisoner, entertained him as his Guest, and thereby engaged him, being an Eye-Witness of both the Poverty and Civility of the Getes, ever after to desire such People for his Friends, rather than Enemies.
I. How far internal Justice allows the gaining of Empire.I. If there be some Rules of Equity which we cannot dispense with, and some Acts of Humanity which we laudably exercise towards private Persons, tho' not bound to it in Rigour, we are so much more obliged to observe the former, and it is so much more commendable to practise the latter, towards a whole Nation, or part of one, as the Injury done to a great Number of People is more enormous, and the good done to a Multitude is more considerable, than that which we do to a single Person. As other Things may be obtained in a just War, so the Right ofEdition: 1738; Page: [670] the Sovereign over a People, and the Right which the People themselves have, in Regard to the Sovereignty, may be acquired; but only so far as the Degree of the Punishment due to their Crimes, or the Value of any other Debt, may justify. To which we may also add, the Necessity to avoid some extraordinary Danger. But this last Reason is for the most part joined with the other two, which yet, either in making Peace, or in managing a Victory, is chiefly to be considered. For in other Cases we may abate of our Right, from a Principle of Goodness and Indulgence, but in a publick Danger it is a cruel Compassion to trust too much to a conquered Enemy. Thus Isocrates addresses Philip,1 It will be necessary for you so far to subdue the Barbarians, as to secure your own Country from all Danger.Edition: current; Page: [1499]
II. To forbear this Right over the Conquered is commendable.II. 1. Sallust1 records of the antient Romans, Our Ancestors, the most religious of all Men, took nothing from the Vanquished, but the Power to hurt. A Reflection well worthy of a Christian: And to this Purpose he tells us in another Place,2 Wise Men make War for the Sake of Peace, and undergo Labour in Hopes of Rest. Aristotle often said,3 The Design of War is Peace, and Rest of Labour. And this is the Meaning of Cicero's excellent Saying,4 War should be undertaken for no other Reason but to procure a firm Peace. And the same Author again, Wars are to be undertaken for this End, that we may live securely in Peace.
2. Agreeably to this our Christian Divines teach us, that the End of War is to remove those Things which disturb Peace. Before the Days of Ninus, as we have before observed out of Trogus,5 the Custom was rather to defend the Bounds of a State, than to enlarge6 them. Every one's Dominion was limited within his own Country. Kings did not seek for Empire to themselves, but Glory to their People; and contenting themselves with the Victory, would not rule over the Conquered. To which State St. Augustin would reduce us, if possibly he could.7 Let them consider, says he, that it does not belong to good Men to endeavour at the enlarging their Dominion: To which he adds, It is a greater Happiness to have a peaceable Neighbour, than to subdue an ill one in War. And the Prophet Edition: current; Page: [1500] Amos, (Chap. i. ver. 23.) highly blames the Ammonites, for their eager desire to enlarge their Borders, by encroaching on their Neighbours.
III. Either by mixing the Conquered with Conquerors.III. The prudent Moderation of the old Romans comes very near to this exemplary Innocence of the primitive Times.1 What would our Empire now have been? (says Seneca) if a sound Policy had not intermixed the Conquered with the Conquerors. Our Founder Romulus, (says Claudius,2 in Tacitus) was so wise, that he made those that were his Enemies, the same Day Citizens; and he tells us,3 That nothing so much contributed to the Ruin of the Lacedemonians and Athenians, as their excluding the Conquered as Strangers from the common Rights of their Citizens. Livy4 says, the Roman Republick was aggrandized, by giving the Freedom of Citizens to its Enemies, after they were conquered. Histories give us the Examples of the Sabins, Albans, Latins, and other Italian Nations; till at last, Caesar led the Gauls5Edition: 1738; Page: [671] in Triumph, and then introduced them into the Senate. Cerealis, in Tacitus,6 thus addresses the Gauls, You yourselves generally command our Legions, you govern these, and the other Provinces; you are denied or debarred nothing: And he adds, Wherefore love Peace, and reverence a City where you enjoy the same Right as the Conqueror. Lastly, what is very admirable, all within the Compass of the Roman Empire, by the Decree of the Emperor Antoninus,7 were made Citizens Edition: current; Page: [1501] of Rome, which are the very Words of Ulpian. After that, as Modestinus8 observes, Rome was the common Country of all that were under its Dominion. And thus said Claudian of it,
IV. Or by leaving the Sovereignty in the Hands of those that possessed it before.IV. 1. There is another Kind of Moderation in Victory, to leave to the Conquered, either Kings or People, their own Government. Thus Hercules to Priam,
The same Hercules having conquered Neleus, gave his Kingdom to his Son Nestor. Thus the Persian Monarchs left their Kingdoms to the conquered Edition: current; Page: [1502] Kings. So did Cyrus to the King of Armenia, and Alexander to Porus. This2 Seneca much commends, To take nothing from the vanquished King but Honour. And Polybius3 admires the Moderation of Antigonus, that when he had Sparta in his Power, he left to the Citizens, Their antient Government and Liberty. Which Act, he says, acquired him great Praise throughout Greece.
2. Thus the Cappadocians were permitted by the Romans to use what Form of Government they pleased; and several other Nations, after the War, were left free.Edition: 1738; Page: [672] Carthage4 was left free, to be governed by her own Laws, as the Rhodians pleaded to the Romans, after the second Punick War; and Pompey, (says5 Appian) Of the conquered Nations he left some free. And Quintius answered the Aetolians, crying out that there could be no firm Peace, till Philip the Macedonian were driven out of his Kingdom;6 they had perfectly forgot the Custom of the Romans, to spare those they had conquered; adding this, That a great Soul was always the most merciful to the Vanquished. And Tacitus informs us,7 That nothing was taken away from Zorsines when he was conquered.8Edition: current; Page: [1503]
V. Sometimes by placing of Garrisons.V. Sometimes with the restoring of the Sovereignty, the Conqueror's Security is also provided for.1 Thus it was ordered by Quintius, that the City of Corinth should be restored to the Achaeans, but a2 Garrison put into the Citadel. And that Chalcis and Demetrius should be detained, till all Fear of Antiochus were over.
VI. Or by Tributes, and the like Impositions.VI. The imposing of Tributes is oftentimes not so much to reimburse the Charges of a War, as for the Security both of the Conqueror and Conquered, for the future. Cicero writes thus of the Greeks,1 Let Asia also consider, That she can never be free from a foreign War, or domestick Quarrels, if she be not secured by the Roman Empire, and since that cannot be done without Tributes; she may very reasonably part with some of her Wealth, to secure to herself a perpetual Peace. Petilius Cerealis, in Tacitus, thus pleads for the Romans, with the Lingones, and other Gauls.2 We, tho' so often provoked, yet, by the Right of Victory, exact of you only what is necessary to maintain Peace. For the Peace of Nations cannot be maintained without Arms, nor Arms without Pay, nor that without Tributes. Agreeable hereunto is that which we have saida before, when we treated of unequal Alliances, as to deliver up one's Arms, Fleets, Elephants, to keep no Fort nor Army.Edition: current; Page: [1504]
VII. Profit arising from this Moderation.VII. 1. But that their own Sovereignty should be left to the Vanquished, is not only agreeable to Humanity, but often also to Policy. This is commended among Numa's Laws, that he would have no Blood shed at the Rites of the God Terminus, thereby intimating, that nothing more contributed to a firm Peace than to live contentedly within our own Bounds. And Florus1 well observes, It is harder to keep Provinces, than to conquer them; they are gained by Force, but must be retained by Justice. Like to this is that of Livy,2 It is more easy to conquer several Countries, one after another, than to keep them all together. And Augustus says, in Plutarch,3 It costs less to conquer a great Empire, than to govern it when conquered.Edition: 1738; Page: [673] Darius's Embassadors tell Alexander,4 A foreign Empire is dangerous, it is hard to hold what one cannot grasp. It is easier to conquer some Places than to keep them. How much more easily do our Hands take than they can hold!Edition: current; Page: [1505]
2. Which5 Calanus the Indian, and before him Oebarus,6 Cyrus's Friend, explains, by the Comparison of dry Leather, which when pressed down with your Foot on one Side, rises up on the other. And T. Quintius, in Livy,7 by the Similitude of a Tortoise, who when he draws himself into his Shell is safe from Harm; but as soon as ever he peeps out, is presently in Danger. Plato8 in his third Book of Laws, thus applies the Saying of Hesiod, Omni dimidium plus, One half is better than the whole. And Appian9 observes, that when some Nations desired to be admitted under the Roman Government, they were refused; and to some Nations they appointed Kings. In the Opinion of Scipio Africanus, the Roman Empire in his Days was so large, that to desire more would be but Covetousness; to keep quietly what they had, would be sufficiently happy. Edition: current; Page: [1506] Wherefore that Prayer in which, at their solemn Purgations, the Romans used to intreat the Gods to prosper and enlarge their Empire,10 he thus amended, that they would preserve it in perpetual Safety.
VIII. Examples, and of the Change of Government among the Conquered.VIII. The Lacedemonians, and in the Beginning, the Athenians, never pretended to any sovereign Power over conquered Cities, they only insisted that they should use the same Form of Government with themselves. The Lacedemonians being under an Aristocracy, and the Athenians under a Democracy, as Thucydides, Isocrates, and Demosthenes inform us, and also Aristotle himself, in his eleventh Chapter of his fourth Book, and seventh of the fifth of the Republick; to which very Thing, Heniochus, a Writer of those Times, makes this Allusion in his Comedy,
Tacitus mentions the same Thing done by Artabanus, in Regard to Seleucia,2 He established Aristocracy for his own Interest, because popular Government comes nearer to Liberty, and the Dominion of a few Nobles somewhat resembles arbitrary Power. But whether such Alterations3 make for the Security of the Conqueror, it is not my Business to determine.Edition: current; Page: [1507]
IX. If the Sovereignty be assumed, part of it to be left to the Conquered.IX. But if it be not perfectly safe to leave to the Conquered their entire Liberty, yet it may be so moderated, that some Part of the Government may be left to them, or their Kings. Tacitus1 tells us, that it was the Custom of the Romans, to make even Kings Instruments of Subjection. So Antiochus is called,2 The richest of all the Kings that were subject to them. Kings, Subjects of the Romans,3 in the Commentaries of Musonius. And in Strabo,4 about the End of the sixth Book. Thus Lucan,
Thus the Government continued among the Jews, in the Sanhedrim,6 even after Archelaus had been stript of his Kingdom. And Evagoras,7 King of Cyprus, (as Diodorus relates) said, he would obey the King of Persia, but that as one King did another. And Alexander offered to Darius, after he had overcome him,8 That he should rule over others, provided Edition: current; Page: [1508] he would obey him, his Conqueror. We have alreadya treated of the Manner how a Government may be mixed. Sometimes, conquered Kings had Part of their States restored to them, and at the same Time, Part of the Lands9 was left to the antient Possessors.
X. Or at least some Sort of Liberty.X. Yet when all Sovereignty is taken from the conquered, there may be left to them their own Laws, about their private and publick Affairs, of small Moment, and their own1 Customs and Magistrates. Thus Pliny's Epistles tell us, that inEdition: 1738; Page: [675] Bithynia, a Proconsular Province, the City2 Apamea was indulged to govern their State as they pleased themselves. Edition: current; Page: [1509] And in other Places, the Bithynians had their own Magistrates, and their own Senate. So in Pontus, the City of Amisus, by the Favour of Lucullus,3 was allowed its own Laws. The Goths left their Civil Law to the conquered Romans.
XI. Especially in Religion.XI. 1. Another Privilege which ought to be allowed the Conquered, is1 the Exercise of their antient Religion; unless they themselves, being convinced, are desirous to change it; which Agrippa, in his Oration to Cajus, (which Philo gives in his Relation of his Embassy) proves to be both very agreeable to the Vanquished, and not prejudicial to the Victor. And in Josephus, both Josephus himself, and the Emperor Titus,2 objected to the rebellious Jews at Jerusalem, that, by the Favour of the Romans, they might use their own religious Ceremonies with so much Liberty, that they might drive away Strangers from their Temple, even at the Peril of their Lives.
2. But if the Religion of the Conquered be false, the Conqueror ought to take Care,3 that the true one be not oppressed; which Constantine did, by weakning Licinius's Party; and after him the antient Kings of France, and of other Nations.
XII. At least we ought to use the Conquered with Mercy, and why.XII. 1. The last Advice is, where the Empire is entirely and absolutely obtained, there we should treat the Conquered with Gentleness, and in such a Manner that their Interests may be blended with those of the Conqueror. Cyrus bid the conquered Assyrians be of good Courage, telling Edition: current; Page: [1510] them that their Condition should be the same it was before, except only that they would have another King; that they should enjoy their Houses, Lands, their Authority over their Wives and Children, as before; and if any one wronged them, he and his would take Care to see them righted. We read in Salust,1 The Romans chose rather to gain Friends thanEdition: 1738; Page: [676] Slaves, and thought it safer to govern by Love than Fear. In the Days of Tacitus,2 the Britons readily made their Levies, paid their Tributes, and performed all Duties enjoined them by the Romans, whilst they were not ill-treated; but they could not easily bear Wrongs, being so far conquered, as to be Subjects, not Slaves.
2. The Privernian Embassador being asked in the Roman Senate, what Sort of Peace the Romans might expect from them, replies, If you shall grant a good Peace, it will be firm and lasting; if a bad one, it will not hold long. And he gives the Reason,3 Do not think that any People, or single Person, will ever continue longer in a Condition that he does not like, than he is absolutely forced to it. So said Camillus, That Empire is most secure, which is agreeable to those over whom it is exercised. The Scythians told Alexander, There is no true Friendship between the Lord and the Slave; and, Edition: current; Page: [1511] in the midst of Peace, the Rights of War remain. And Hermocrates, in Diodorus, It is not so glorious to overcome, as to use the Victory with Humanity. In Order to make a right Use of Victory, the Saying of Tacitus ought always to be remembred, that We cannot finish a War in a more happy and glorious Manner than by pardoning the Vanquished. Julius Caesar, in a Letter he wrote when Dictator, says, Let this be the new Way of conquering, to secure ourselves with Mercy and Liberality.
I. That internal Justice requires that what is taken away by an Enemy in an unjust War, be restored.I. 1. How far Things taken in a just War may be the Captors, I have declareda above, from which are to be deducted, what are recoverable by the Right of Postliminy; for these are to be esteemed as not taken. But Things taken in an unjust War, I have alreadyb said, are to be restored, not only by the immediate Captors, but by others also, who shall happen to be possessed of them on any Account. For no Body can make over to another more Right than he has himself, say the1 Roman Lawyers; which Seneca briefly explains,2 No Man can give what he has not to give. If the first Captor did not become lawful Proprietor of them, according to the Rules of true Justice, then he cannot possibly be so, who derives all the Title he can have from him. Therefore the Right of Property which the second or third Possessor may have, is what we call external, that is, he is entitled to Defence by all judiciary Power and Authority, as if he were the right Owner; yet if he makes Use of this Right against him from whom the Things were unjustly taken, he acts dishonestly.Edition: current; Page: [1513]
2. For what some eminent Lawyers3 have decided concerning a Slave, who being taken by Robbers, afterwards fell into the Hands of the Enemy, that he was to be considered as a Thing stolen, though he had been Slave to the Enemy, and returned by Right of Postliminy. The same may be an-Edition: 1738; Page: [677]swered from the Law of Nature, concerning him, who being taken in an unjust War, and afterwards, by a just War, or some other Accident, comes into the Power of another. For by internal Right, there is no Difference between an unjust War and downright Robbery. And Gregorius Neo-Caesariensis, being consulted, made a correspondent Answer, when some of the Inhabitants of Pontus4 had recovered some Goods taken away by the Barbarians.
II. Examples.II. 1. Therefore Things so taken, ought to be restored to them from whom they were taken, which we see frequently done.1 Livy, relating how the Volsci and Aequi were overcome by L. Lucretius Tricipitinus, says, That the Spoil was exposed for three Days in the Field of Mars, that every one might have that Time to come and acknowledge his own, and freely take it away. And the same Author in another Place, speaking of the Volsci, defeated by Posthumius the Dictator, says,2 Part of the Spoil was restored to the Latins and Hernici, upon their owning of it, of another Part he made Portsale. And again,3 Two Days were allowed to the Owners to come and claim their Goods. And the same Author, speaking of the Samnites's Victory over the Campanians, tells us,4 It was a most joyful one to the Conquerors, for they had retaken 7400 Prisoners; a vast Booty for their Confederates; and the Owners were summoned by Proclamation, to own and take their Goods by a certain Day. And a little further he gives us the like Account of the Romans.5 The Samnites endeavouring to take Interamna, Edition: current; Page: [1514] a Colony of the Romans, but not able to hold it, they plundered the Country, and carrying off a great Number of Men, Cattle, and other Things, they accidentally fell into the Hands of the Roman Consul, returning Conqueror from Luceria; nor did they lose only their Booty, but, being encumbered with their heavy Baggage, were themselves routed and slain. The Consul, by Proclamation, summoning the Owners to come to Interamna, to fetch their Goods, leaving his Army there, went to Rome, on the Account of chusing Officers. The same Author also, in another Place, speaking of the Booty which Cornelius Scipio had taken at Ilipa, a City of Portugal, says thus,6 It was all exposed to View before the City, and Leave given to the Owners to take their own, the Rest was delivered to the Quaestor to be sold, and the Money arising from thence distributed to the Soldiers.7 After the Battle of T. Gracchus at Beneventum, the whole Prey, except the Prisoners, and what Cattle were not owned within thirty Days, were given to the Soldiers: As we read in the same Livy.
2. Polybius writes of L. Aemilius, when he had conquered the Gauls,8 He restored the Spoils to those that came for them.9 Plutarch and Appian relate, that Scipio did the same, when at the taking of Carthage, he found there many Things consecrated to the Gods, which the Carthaginians had brought thither from the Cities of Sicily, and elsewhere, (viz. restored them to their first Owners). And so does Cicero, in his Oration against Verres, concerning the Jurisdiction of Sicily,10 The Carthaginians had formerly taken the City of Himera, that had been one of the stateliest and richest of Sicily; Scipio looking upon it as an Act worthy of the Roman People, when the War was ended by the taking of Carthage, took Care that their proper Goods should be restored to all the Sicilians. And the same Edition: current; Page: [1515] Author does largely speak of the same Act of Scipio, in his Oration against Verres, concerning Statues.Edition: 1738; Page: [678] Thus the Rhodians restored four Ships to the Athenians, which they had recovered from the Macedonians, that had formerly taken them from the Athenians. So Phaneas the Aetolian (as Livy11 says) thought it equitable, that all that had belonged to the Aetolians before the War, should be restored to them. Neither did T. Quinctius deny it, if the Demand had been only of Cities taken in War; and if the Aetolians had not broke the Conditions of the Alliance. Nay, even those Goods which had been consecrated at Ephesus, and which the Kings had afterwards made their own, the Romans12 restored to their former State.
III. Whether any Thing may be deducted.III. 1. But if such Things should come to one in Way of Trade, may he not charge him, from whom they had been taken, with as much as they cost him? He may, as we have alreadya said, in Equity, so far as the Recovery of the Possession of those desperate Things,1 might probably Edition: current; Page: [1516] cost him, from whom they were taken. If then those Charges may be demanded of him,2 why may not also our Pains and Hazard be valued, as if a Person should recover another Man's Goods out of the Sea, by Diving? Apposite to this is the Story of Abraham's returning Conqueror of the five Kings to Sodom: Moses says, He brought back all those Things, (viz. that they had taken away), as related before, Gen. xiv. 16.
2. Neither can the Offer made by the King of Sodom, Ver. 20, 21, 22, 23, 24. to restore to him the Prisoners, and to keep the Rest himself, as the Reward of his Pains and Hazard, be otherwise applied. But Abraham3 being a Man not only of a piousEdition: 1738; Page: [679] Mind, but also of a heroick Edition: current; Page: [1517] Spirit, would take nothing to himself; but of the Booty, (for, as we said before, that is what is meant4) as being his due, he gave the tenth unto GOD; he deducted the necessary Expences of that Expedition, and some Part he desired to be given to his Confederates.
IV. The People, or Part of them, to be restored, if unjustly possessed.IV. As Things (taken in an unjust War) are to be restored to their proper Owner,1 so a People, or Part of them, are to be returned to their lawful Sovereigns, or even to themselves, if they were free before this unjust Conquest. Thus was Sutrium retaken, and restored to its Allies in the Time of Camillus, as Livy informs us. The Lacedemonians restored the Aeginetae and Melii2 to their Cities. And the Cities of Greece, which had been oppressed by the Macedonians, were set at Liberty by Flaminius; who, in the Conference with3 Antiochus's Embassadors, told them, it is equitable that all the Cities of Asia, which were of Greek Original, should be restored to their Liberty, which Seleucus, the Great-Grandfather of Antiochus, had taken by Force, and afterwards being lost, had been reconquered by this Antiochus: For, says he, those Colonies were Edition: current; Page: [1518] not sent into Aeolia and Ionia to be subjected to the Kings of Asia, but to preserve a Nation so antient as that of Greece, and to propagate it throughout the World.
V. In what Time the Obligation of Restitution ceaseth.V. It has been sometimes disputed, how long a Time is allowed, before this internal Obligation to Restitution may cease? But this Question, if it be between Subjects1 of the same State, is best decided by their own Laws, provided those Laws give a true Right, that sets the Conscience at Rest, and not an external Right only; which may be collected by a prudent Searching into the Words and Meaning of those Laws. But if it be between Strangers each to other, it can be decided only by just Presumptions of a tacit Dereliction; of which we have spoken enough ina another Place to our Purpose.
VI. What is to be done in a dubious Case.VI. But if the Justice of the War be very doubtful, it will be best to follow the Advice of Aratus the1 Sicyonian; who in part persuaded the new Possessors2 to accept of Money in lieu of them; and in part advised the first Owners rather to accept of the Value of their Lands, than run the Hazard of recovering them.Edition: 1738; Page: [680]
I. From Neuters nothing is to be taken but upon extream Necessity, and with restoring the full Value.I. It may seem needless for us to treat of those that are not engaged in the War, when it is manifest that the Right of War cannot affect them; but because, upon Occasion of War, many Things are done against them on Pretence of Necessity, it may be proper here, briefly to repeat what we have already mentioneda before, that the Necessity must be really extream, to give any Right to another's Goods. That it is requisite, that the Proprietor be not himself in the like Necessity. When real Necessity urges us to take, we should then take no more than what it requires. That is, if the bare keeping of it be enough, we ought to leave the Use of it to the Proprietor; and if the Use be necessary, we ought not to consume it; and if we cannot help consuming it, we ought to return the full Value of it.
II. Examples of Abstinence, and some Precepts.II. 1. Moses, when he was obliged of Necessity to pass with the Israelites through the Country of the Edomites, he first offers to go through the Highway, and not to touch their Fields or Vineyards, and if they should want Water they would pay for it, Numb. xx. 17. The same did the Generals of the most renowned Probity amongst the Greeks and Romans. The Greeks, in1 Xenophon, under Clearchus, promise the Persians to march without doing any Damage; and if they would sell them Provisions, they would not by Force take Meat or Drink from any one.Edition: current; Page: [1520]
2. Dercyllides, in the same Xenophon,2 led his Army through neutral Countries, without any Injury to the Confederates. Livy3 tells us of King Perseus, He returned into his own Kingdom, through Pthiotis, Achaia, and Thessaly, without any Damage to the Country. And Plutarch, of the Army under Agis the Spartan, They were a Sight to all the Cities of Greece,4 marching through Peloponnesus inoffensively, civilly, and almost without any Noise. Thus Velleius says of Sylla,5 You would think he came into Italy, not as a revengeful General, but as a Peace-maker, he marched his Army so quietly through Calabria and Apulia, with such particular Care of the Fruits, the Fields, the Cities, and the Men, as far as Campania.6 And Tully, of Pompey the Great, Whose Legions so marched into Asia, as not only the Hands of so great an Army, but not even so much as their Feet, could be said to have done the least Damage to any one that was peaceable. And Frontinus,7 of Domitian, When he built Forts on the Frontiers of Ubii, he ordered the Fruits of those Places which he was to intrench, to be appraised and paid for; and the Fame of that particular Act of Justice, gained him the Credit of all Men. And Lampridius, of Severus's Parthian Expedition,8 He managed it with so much Discipline, and so great a Reverence to his own Person, that his Men seemed rather Senators than Soldiers: The Tribunes so ready, the Captains so modest, the Soldiers so friendly, that wheresoever they came, the Country People, for so many and extraordinary Edition: current; Page: [1521] Benefits, honoured him as a God. The Panegyrist speaks9 of the Goths, Huns, and Alani,Edition: 1738; Page: [681] that served under Theodosius, No Noise, no Confusion, no Plundering was there, as from Barbarians; but if their Provisions happened to fall short, they bore it patiently, and proportioned every one's Allowance to their Numbers. And Claudian attributes the same to Stilico.
And11 Suidas to Belisarius.Edition: current; Page: [1522]
3. This was brought about by those famous Warriors, by taking great12 Care to provide for the Subsistence of their Army, by paying their Troops well, and by observing a strict Discipline, whose chief Law13 Ammianus says is, That the Countries of those at Peace with us should not be wasted. And in Vopiscus,14 Let no one dare to take away a Chicken of another Man's, let none touch a Sheep, let none pluck a Grape, let none tread down the Corn, and let none demand Oil, Salt, or Wood. And so in Cassiodore,15 Let them live with the Provincials according to the CivilEdition: 1738; Page: [682] Edition: current; Page: [1523] Law, neither let them grow Insolent, because they are armed; for the Shields of our Army ought to protect those who wear none. To which we may add that in the sixth Book of Xenophon's Expedition,16 We must not pretend to compel a State at Peace with us to give any Thing against their Will.
4. From which Passages we may best understand that Advice of the great Prophet, even of him that was more than a Prophet, Luke iii. 14. Offer Violence to no Man,17 accuse no Man falsly, and18 be content with your Wages. To which agrees that of Aurelian in Vopiscus in the aforequoted Place,19 Let him be content with his Allowance, let him live rather on the Spoil of the Enemy, than the Tears of the Provincials. Neither may any one think that this is only finely spoken, but not to be practised. For neither would so holy a Man (as St. John) advise, or wise Law-Makers Edition: current; Page: [1524] command what they believed not possible to be done. Lastly,20 What has been done we must necessarily own possible to be done. Therefore we have brought several Examples. To which we may add, that remarkable one21 which Frontinus mentions out of Scaurus, that an Apple Tree full of Fruit standing within the Compass of the Ground where the Camp was pitched, was the next Day, after the Army was gone, found with its Fruit untouched.
5. Livy22 relating how insolently the Roman Soldiers behaved in their Camp at Sucro, and that some of them in the Night-time pillaged the Neighbouring Country that was at Peace, adds this as the Reason, that all Things were done loosely and disorderly, without any regard to military Discipline. There is also another remarkable Place in the same Author, describing Philip's March through the Country of the Denthelatae; They23 were indeed Allies (says he) but the Macedonians being in great Necessity plundered them, as if it had been the Enemy's Country; for robbing every where, they first laid waste great Houses, then some Towns, to the great Dishonour of the King, who heard his Confederates in vain calling upon the Gods and him for Assistance. Tacitus24 says Pelignus very much blasted his Reputation, for that he preyed more upon the Allies, than Enemies. And the same Author observes,25 that the Soldiers of Vitellius were scandalously slothful throughout all Italy, and onlyEdition: 1738; Page: [683] dreadful to those Edition: current; Page: [1525] that entertained them. And in Cicero's Oration against Verres, one of the Heads of the Accusation was this,26 You have taken Care to have the peaceable Cities of our Allies and Friends plundered and wasted.
6. And here I cannot omit the Opinion of some Divines, which I hold to be very right, that the King who does not give his Soldiers their just Pay, stands not only engaged to the Soldiers, but to his Subjects and Neighbours for the27 Damages consequent thereupon, which the Soldiers, compelled by pure Want and Necessity, have done them.
III. What is the Duty of Neuters to those that are engaged in War.III. 1. On the other Side, it is the Duty1 of those that are not engaged in the War, to sit still and do nothing, that may strengthen him that prosecutes an ill Cause, or to hinder the Motions of him that hath Justice on his Side, as we have saida before. But in a dubious Causeb to behave themselves alike to both Parties; as in suffering them to pass through their Country, in supplying them with Provisions, and not relieving the Besieged. The Corcyreans in Thucydides2 tell the Athenians, if they would really be Neuters, they should either forbid the Corinthians to raise Men in the Country of Attica, or suffer them to do so too. The Romans3 objected against Philip King of the Macedonians, that he had doubly broke the Alliance, first that he had injured the Confederates of the Romans, and then that he had assisted their Enemies with Men and Money. T. Quinctius urges the same in a Conference4 with Nabis. You say, I have not directly violated my League of Friendship with you. How Edition: current; Page: [1526] often would you have me convince you that you have? But to sum up all in a few Words, by what Means may Friendship be broken? Certainly by these two chiefly, if you treat our Allies as Enemies, or if you join our Enemies.
2. Agathias tells us, he is an Enemy who does what pleases an Enemy; and Procopius5 looks upon him to be in the Enemy's Army, who supplies them with Things that are properly useful in War. Thussaid Demosthenes of old,6 He that invents, or prepares these Things, by which I may be taken, is mine Enemy, tho' he neither strikes me, nor throws a Dart at me. M. Acilius7 told the Epirots, who indeed had not assisted Antiochus with Soldiers, but were accused of having furnished him with Money, he could not tell whether he should account them Enemies or Neuters. And L. Aemilius8 the Praetor complains of the Teii, that they had victualled the Enemy's Fleet, and promised them Wine, declaring, that unless they did the like to the Roman Fleet, he should hold them as Enemies. Plutarch mentions a Saying of Augustus Caesar,9 That City has forfeited her Pretensions to Peace, that entertains the Enemy.
3. It would also be very advantageous to make an Alliance with both Parties, so as with their full Consent we might sit still in Quiet, and might be permitted to do common Offices of Humanity promiscuously to them both. Livy says,10 It becomes those that are Friends to both Parties, to desire Peace, and not to engage on either Side. Archidamus King of Sparta, observing the Aeleans inclining to side with the Arcadians, writ a Letter to them, with only this in it: It is good to be quiet.Edition: 1738; Page: [684]
I. Whether it be lawful to hurt a publick Enemy privately explained by the Law of Nature, of Nations and Civil Law.I. 1. What we have said hitherto, does most belong either to those who command with an absolute Authority in War, or those who act by Vertue of the Orders they have received from the Sovereign. We are now to see, what may be privately done in War, whether we respect the Law of Nature, of Nations, or the Divine Law. Cicero1 relates in his first Book of Offices, that the Son of Cato the Censor served in the Army under Popilius the General, and in a short Time that Legion was disbanded; yet the young Man out of a military Inclination still continuing in the Army, Cato writ to Popilius, if he designed to have him still in the Army, to give him a second Oath; adding the Reason, because the former being discharged he could not lawfully fight with the Enemy. He also records the very Words of Cato out of his Letter to his Son, in which he warns him from engaging in Fight, for it is not lawful, for one that is not a Soldier to fight an Enemy. Plutarch much commendsa Chrysantas a Soldier of Cyrus, who drew back his Sword, that he had lifted up to kill his Enemy, upon his hearing the Trumpet sound a Retreat. And Seneca tells us,2 He is a bad Soldier, who regards not the Signal of a Retreat.
2. But they are mistaken, who think this arises only from the external Right of Nations; for if you barely consider that, as it is lawful for any Edition: current; Page: [1528] one to seize on his Enemy's Goods, (as web said before) so he may also kill his Enemy, for by that Right3 Enemies are accounted as if they were not real Persons. What Cato therefore adviseth, proceeds from the Roman military Discipline, which had a Law4 (as Modestinus observes) that he who disobeyed, should be put to Death, tho' he had had good Success; but he was understood not to have obeyed, who without the General's Command, fought the Enemy, as appears from the Example of Manlius. For if such a Thing were commonly permitted, the Soldier would abandon his Post of his own Head, or even Licentiousness might in Time proceed to such a Length, that the Whole Army or Part of it would rashly engage5 in dangerous Fights; which was by all Means to be avoided. Therefore Salust describing the Roman Discipline, says, Edition: current; Page: [1529] 6They were oftener punished in War, who contrary to Orders had fought the Enemy, or kept the Field after sounding a Retreat. A certain Spartan, when just ready to kill his Enemy, stopt his Blow upon hearing the RetreatEdition: 1738; Page: [685] sounded, and gave this Reason,7 It is better to obey our Commanders, than to kill an Enemy. And Plutarch8 gives this Reason, why a Man dismissed from the Service, cannot kill an Enemy, because he is not obliged by the military Laws, which they that are to fight must observe. And Epictetus in Arrian9 relating the Action of Chrysantas, just mentioned, says, He thought it much better to obey the Orders of his General, than his own Will.
3. But if we respect the Law of Nature and true Justice,10 it seems lawful in a just War for any Man to do those Things, which may be beneficial to the innocent Party, provided it be within the just Measure of making War: Every one however has not a Right to appropriate to himself what he takes from the other Party, whose Cause we suppose bad; because nothing is due to him: Unless perhaps he may exact a just Punishment by the common Right of Men. Which last how it is restrained by the evangelical Law, may easily be understood from what we havec said before.
4. An Order then may be either general or special; general, as when the Consul cried out in the Tumult among the Romans,11 Let them that Edition: current; Page: [1530] wish well to the Commonwealth, follow me. Nay, this Right12 of killing is sometimes granted to every Subject, even beyond his own Defence, when the publick Safety requires it.
II. What may they do, that make War at their own private Charge, or fit out Ships, by internal Justice, in respect of the Enemy.II. 1. They may have a special Order, not only who receive Pay, but also they who serve in War at their own Expences, and what is more, they who maintain Part of the War at their own Charges; as they who fit out Ships, and maintain them at their own private Cost; who to reimburse themselves (instead of Pay) are allowed to keep and appropriate to themselves what they take, as we havea said elsewhere; but how far this may be reconcilable to true Justice, and Charity, may very well admit of a Dispute.
2. Justice either respects the Enemy, or the State, with which we contract. We have alreadyb said, that in a just War the Possession of all Things that can contribute to the Maintenance of the War, may for our own Security be taken away from an Enemy, but even this with a Condition of Restitution; but the Property of those Things can be only so far acquired, as amounts to the Value of what is due to the State, either at the beginning of the War, or in the Prosecution of it, whether the Things belong to the State at Enmity with us, or particular Persons, that may be of themselves innocent; but the Goods of the Guilty, by way of Punishment, may be taken away, and become the Property of the Captor's. Therefore the Goods of their Enemies shall be theirs, who maintain Part of the War at their own Charge; what respects the Enemy, so far, as that the reasonable Satisfaction on which I have mentioned, be allowed, to be adjudged by equal Arbitrators.
III. What in respect of their own State.III. And as to the State, the very same will be just, according to internal Justice, if there be an Equality in the Contract, that is, if our Charges and Hazard be equal to the uncertain Hope of the Booty. But if this Edition: current; Page: [1531] Hope1 does far exceed, the Overplus is to be restored to the State; just as if one should buy at a very low Price the cast of a Net, the Success of which, tho' uncertain, promises much, according to all Appearance.Edition: 1738; Page: [686]
IV. What the Law of Christian Charity requires of us.IV. But it is not enough that we do nothing against the Rules of rigorous Justice, properly so called; we must also take Care that we offend not against Charity, especially Christian Charity. Now this may happen sometimes; when, for Instance, it appears, that such a plundering doth not so much hurt the State, or the King, or those who are culpable themselves, but rather the Innocent, whom it may render so extreamly miserable, that if we should use the like Extremity to our own private Debtors, it would be judged barbarously cruel. But farther, if the taking of this Booty neither contributes to the finishing of the War, nor considerably weakens the Enemy,1 the Gain arising to himself only from the Unhappiness of the Times, would be highly unbecoming an honest Man, much more a Christian.
V. How a private War may be mixt with a publick.V. But it happens sometimes, that from the Occasion of a publick War, there arises a private one; as if a Man should by Chance fall among his Enemies, and be thereby in Danger of losing his Life or his Goods, in which Case he ought to follow the Rules we have givena elsewhere concerning the just Defence of ones self. Private Persons are likewise often authorised by the State to act for their own particular Interest; as when having suffered much by the Enemy they obtain Permission to refund Edition: current; Page: [1532] themselves out of their Effects. And here we are to regulate ourselves by what has been said aboveb of the Right of Reprisals.
VI. What he stands obliged to, who without Command hurts an Enemy, explained with a Distinction.VI. Yet if a Soldier, or any other Person, even in a just War, shall burn the Enemy's Houses, lay waste their Fields, and commit such other Acts of Hostility, without any Command, and besides when there is no Necessity, or just Cause, in the Opinion of the Divines he stands obliged to make Satisfaction for those Damages. I have with Reason added, what they have omitted, if there be not a just Cause; for if there be, he may perhaps be answerable for it to his own State, whose Orders he hath transgressed, but not to his Enemy, to whom he hath done no Wrong. Not unlike to this was the Answer1 which a certain Carthaginian made to the Romans, when they demanded Hannibal to be delivered up to them. The Question is not whether Saguntum was besieged by private, or publick Authority, but whether the Fact were just or unjust? For it is our Business to call our own Subject to an Account, whether he did it of his own Head or by our Order? The only Point to be decided between you and us, is whether the Thing could be done without Prejudice to our Treaties.
I. Faith is to be kept with all Sorts of Enemies.I. 1. We have alreadya said, what, and how much may be lawfully done in War, [[th]]is† either considered simply in itself, or with regard to a foregoing Promise. The first Part being concluded, the other remains to be discussed, which is, concerning Faith (to be kept) between Enemies. It is a remarkable Saying of Silius Italicus, who had been a Roman Consul,
The most excellent Warrior is he who has nothing so much at Heart, as the punctual Observance of his Word to an Enemy.Edition: 1738; Page: [687]
Xenophon2 in his Oration concerning Agesilaus, says, So great and noble a Thing it is for every Man, but especially for Generals to be strict Observers of their Faith, and to be so accounted. And Aristides3 in his fourth Leuctrica. It is in Treaties of Peace and other publick Conventions, that we chiefly know whether those that make them love Justice. For as Cicero4 Edition: current; Page: [1534] well observed in his fifth Book of Bounds, There is no Body, but approves and commends that Disposition of Mind, by which not only no Interest is sought, but on the contrary Faith is kept against Interest.
2. It is the publick Faith, as it is in Quintilian the Father,5 that procures a Truce between armed Enemies, and preserves the Rights of yielded Cities. And the same Author in another Place:6 Faith is the surest Bond of human Things, the Reputation of Faith is sacred among Enemies. And so St.7 Ambrose: It is plain that Faith and Justice must be strictly observed in War. And in St. Augustine,8 When our Faith is engaged, it must be kept even to our Enemy, tho' at that Time at War with him. For their being Enemies, does not make them cease to be Men. And all Men arrived at the Years of Discretion are capable of a Right from a Promise. Camillus declares in Livy,9 That he had such a Society with the Falisci, as was established by Nature.
3. From this Society founded on Reason and Speech, arises that Obligation from a Promise, which we now treat of. And we are not to imagine that, because it is permitted to tell a Falshood to an Enemy, or because, according to the Opinion of several, there is no Harm in it, as we Edition: current; Page: [1535] have observedb elsewhere; we may extend such a Permission to the very Words we use in treating with the Enemy. For the Obligation to speak Truth arises from a Cause, prior to War, and perhaps may be in some Measure annihilated by War, but a Promise of itself confers new Right. Aristotle10 perceived this Difference, when treating of Veracity, he said, I do not speak of him, who says the Truth in the Conventions he makes, nor what relates to Justice or Injustice; for these Things belong to another Virtue.
4. Pausanias11 said of Philip of Macedon, No Body can justly call him a good General, who has always despised his most solemn Oaths, and has upon the slightest Pretence broke his Faith, the most of any Man. And the like says Valerius Maximus of Hannibal.12 A profest Enemy to the Romans, and all Italy, and a greater to Faith itself, glorying in Lies and Falshood, as if laudable Virtues; whence it came to pass, that whereas he might otherwise have left an illustrious Memory of himself, he now left it disputable, whether he ought to be considered as a great Man, or a notorious Villain. In Homer, the Trojans pricked in Conscience condemn themselves.
II. The Opinion refuted, that Faith is not to be kept with Pirates and Tyrants.II. 1. We have already said, that we may not allow of that of Cicero,1 There is no Society with Tyrants, but rather the greatest Division: And again, A Pirate is not of the Number of those with whom we make War in form; there ought to be no Faith nor Oath kept with him. Nor that of Seneca2 concerning a Tyrant, Whatever Engagements I had with him, they are all void, because he has violated the Laws of human Society. From which Fountain arose that Error of Michael of Ephesus, who says on the fifth of the Nicomachia,3 It is no Adultery to debauch the Wife of a Tyrant. Which very Thinga some of the Jewish Doctors erroneously maintained concerning Strangers, whose Marriages they esteemed void.
2.4 Yet Cn. Pompey finished most of the piratick War by Treaties, agreeing to save the Men's Lives, and allow them a Place where they might live without robbing. And sometimes Tyrants have restored Liberty on Condition of Impunity. Caesar in his third of the Civil War writes, that the Roman Generals compounded with the Robbers, and Fugitives, that were in the Pyrenean Mountains. Now who can say that such a Composition is not obligatory?5 Indeed such Sort of People have not with others that particular Community, which the Law of Nations hath introduced between Enemies engaged in a solemn and compleate War. But yet, as Men, they are to enjoy the common Benefits of the Law Edition: current; Page: [1537] of Nature, as Porphyry6 rightly argues in his third Book of not eating living Creatures; now it is one of the most inviolable Laws of Nature, that we should perform what we promise. So Diodorusb relates, that Lucullus kept his Faith to Apollonius Captain of the Fugitives. Thus Dio writes, that Augustus paid to Crocota the Robber, who surrendered himself, the Price he had set upon his Head, because he would not break his Word.
III. This Objection answered, that such deserve Punishment, and it is shown that this is not considered, when we treat with them as such.III. 1. But let us see if we cannot produce something more plausible than what Cicero has said; and first, they who are notoriously wicked, and Members of no civil Society, may be punished by any Man, according to the Law of Nature, as we havea declared above. But they who may be punished, even with Death, both their Goods, and their Rights may be taken from them. As the same Cicero well observes,1 It is not against Nature to strip him, if we can, whom it is lawful to kill. But among his other Rights, is also a Right derived from Promise, and therefore this too may be taken away from him by way of Punishment. To this I answer, that the Reason would be good, if we had not treated with him as an Offender; but if we treat with him as such, it is to be understood, as if we in that Respect, remitted the Punishment, because, (as we have saidb elsewhere) we are [[not]]† to explain the Sense of a Convention, so as that it may be reduced to nothing.
2. Nabis replied well in Livy, when Quintius Flaminius objected Tyranny to him.2 Whatever Name is given, and whatsoever I am, just the same Edition: current; Page: [1538] I was, whenEdition: 1738; Page: [689] you yourself (O T. Quintius) made a Treaty with me. And again, I had done these Things already, whatsoever they are, when you contracted an Alliance with me; to which he adds, If I had changed, Iought to give an account of my Inconstancy; but since you have changed, you ought to give an account of yours. Like to this there is a Place in the Oration of Pericles, recorded by Thucydides, We shall let those Cities remain free, which were so when we made an Alliance with them.
IV. No Objection, that the Promise was extorted by Fear, if the Promiser was not himself affrighted.IV. That may likewise be objected, which I saida before, that he who through Fear has forced a Promise from one, ought in Equity to release the Promiser, because he damnified him by Injustice, that is, by an Act both repugnant to the Nature of human Liberty, and to the Nature of the Act extorted, which should have been free. Tho' this (I confess) in some Cases holds true, yet it does not respect all Promises made to Robbers; for that the Promised be obliged to disengage the Promiser, it is required, that he have extorted the Promise by an unjust Fear. If any one then, to deliver his Friend out of the Hands of Robbers who have taken him, shall promise to pay a certain Sum of Money, he is bound to do it,1 because he cannot pretend to have been influenced by Fear, who came voluntarily to make this Contract.
V. Or if there passed an Oath, tho' with Men, such a Violation is not punishable.V. Add to this, that he that is compelled by an unjust Fear to make a Promise, may be obliged to perform it, if he has confirmed it by an Oath, for thereby (as I have saida before) the Man stands bound not only to a Man,1 but unto GOD, in regard to whom Fear can be no Exception. Yet it is true, that the Heir of the Promiser does not stand engaged by such a Bond alone;2 for those Things only pass to the Heir, which by the original Establishment of the Right of Property, enter into the Commerce of Life: But the Right acquired unto GOD by an Oath, cannot Edition: current; Page: [1539] as such be included in these. Again, as we have likewise observed elsewhere, if a Man does happen to break his Faith to a Robber, whether sworn, or not sworn, he shall not upon that Account be liable to Punishment among other Nations; because in Detestation to Thieves and Robbers, all Nations by a general Consent are pleased to connive at any Thing (even tho' ill) done against them.
VI. The same applied to the Wars of a Sovereign against his Subjects.VI. What shall we say of the Wars1 that Subjects make against their Kings, or such as have the supreme Authority? Tho' they may possibly have a Cause not in itself unjust,2 yet that they cannot have a Right to act by Force against their Prince, I have sheweda elsewhere. But sometimes their Cause may be so very unjust, or their Resistance so criminal, that it may deserve a rigorous Punishment. Yet, if they be treated with as Deserters, or Rebels,3 and a Promise made to them; a Punishment, tho' justly due, is not to be pleaded to prevent the Performance of that Promise, according to what we have now said. Faith is to be kept even with Slaves; and the Morality of Pagan Antiquity was so pure, as to own† the Truth of that Maxim: It being generally believed, that the Lacedemonians suffered a Divine Vengeance4 for putting to Death some Taenarian Slaves, contrary to their Covenants. And Diodorus Siculus observes, Edition: current; Page: [1540] serves, that the Faith given to Slaves in the Temple5 of the Palician Gods, was never broken by any of their Masters: Neither will any Exception of Fear be allowed in this Case, if the Faith given be confirmed by an Oath.Edition: 1738; Page: [690] As M. Pomponius,6 the Tribune of the People, being bound by an Oath, tho' compelled by Fear, punctually performed what he had promised to L. Manlius.
VII. A special Difficulty concerning Promises made to Subjects in respect of the Sovereign Power handled.VII. But a greater Difficulty than any yet mentioned may arise from the Legislative Power, and from that super-eminent Right over the Goods of the Subjects, with which the State is invested, and which the Sovereign exercises in its Name. For that Right, if it reach to all the Goods of the Subjects, why not then to that Right also derived from a Promise made in War? Which if granted, all such Covenants seem to be void, and so all Hopes of concluding a War, but by a compleat Victory, would be lost. But on the contrary we must observe, that this super-eminent Right is not to be promiscuously used, but only so far as the publick Good requires it in a civil Government, which, tho' monarchical and absolute, is not despotical. Now, this general Interest commonly requires, that such Agreements should be performed: Agreeable hereunto is what we have alreadya said of the Obligation of maintaining the present State of the Government. Add hereunto, where Necessity requires this eminent Right to be used, Satisfaction is to be made, as hereafterb shall be more fully explained.Edition: current; Page: [1541]
VIII. And it is shewn that such Promises may be confirmed by the Oath of the State.VIII. 1. Moreover Agreements may be confirmed by Oath,1 not only by King, or Senate, but by the whole Body politick; as Lycurgus bound the Lacedemonians, and Solon the Athenians by Oath to observe their Laws: And lest by the Change of the Persons the Oath should lose its Force,2 to renew the same Oath every Year. In that Case, there would be no receding from the Engagement, not even for the publick Advantage. For a State has Power to part with its own Right, and the Terms of the Treaty may be so plain, as to admit of no Exception. Valerius Maximus thus speaks to the City of Athens,3 Read the Law which you have sworn to observe. The Romansa called such Laws sacred, which they were obliged to keep by Oath, as Cicero4 says in his Oration for Balbus.Edition: 1738; Page: [691]Edition: current; Page: [1542]
2. There is in the third Book of Livy5 a Passage agreeable to this, tho' of itself pretty obscure; where from the Opinion of several antient Lawyers, he declares, that the Tribunes of the People were sacred: But so were not the Aediles, Judges, nor Decemviri, and yet to hurt any of these was contrary to the Laws. The Reason of the Difference is, because the Aediles and the rest had no other Protection than that of the Law, that is, an Ordinance of the People, which could not be lawfully contravened, whilst it subsisted, but might be revoked by another posterior to it. Whereas the Inviolableness of the Tribunes was founded on the publick Religion, having been established by an Oath, which could not be revoked even by those who had sworn. Dionysius Halicarnassensis thus records it in his sixth Book:6 Brutus, calling an Assembly, proposed to the People, that the Tribunes might be rendred sacred and inviolable, not only Edition: current; Page: [1543] by the Law, but also by a publick Oath, to which they all agreed. Hence this Law was called Sacred. And therefore7 that Fact of Tiberius Gracchus, in deposing Octavius from the Tribuneship, pretending that the Tribune's Power derived its Inviolableness from the People, but that this Privilege could not take Place in regard to the People themselves, was condemned by all good Men. Therefore (as I have said) both a State and a King may be bound by an Oath made to their own Subjects.
IX. Or if a Promise be made to a third Person.IX. But farther, a Promise1 made to a third Person, who has done nothing to extort it, shall be of full Force. But we shall not examine, wherein and how far that third Person may stand interested in it, being one of the Niceties2 of the Roman Law. For by Nature it is the Interest of all Men to consult the Advantage of others. Thus we read,3 That Philip having made Peace with the Romans, was denied the Power of treating the Macedonians ill, that in the War had revolted from him.
X. How the publick State may be changed.X. Moreover, as we havea already proved that mixt Governments sometimes exist, as a State may pass from one pure Form into another, so it may also by Covenant, or Agreement, pass into a mixt. So that they who before were Subjects, may become Sovereigns, or at least acquire a Part of the Sovereignty with the Right of defending it by force of Arms.
XI. That Fear in a solemn War by the Law of Nations is no just Exception.XI. 1. But a solemn War, that is, publick, and denounced on both Sides, among other particular Effects of external Right, has also this, that whatever Promises are made in that War, or for bringing it to a Conclusion, are so valid, that tho' they were occasioned by1 a Fear unjustly caused, Edition: current; Page: [1544] yet they cannot be made void without the Consent of him to whom the Promise was made. Because as many otherEdition: 1738; Page: [692] Things, tho' in themselves not wholly innocent, are yet by the Law of Nations reputed just, so is Fear,a which in such a War is occasioned on either Side; for if it were not allowed, such Wars, that are but too frequent, could be neither moderated, nor concluded, which yet are very necessary to be done for the good of Mankind. And this we may reasonably suppose to be that Right of War, which2 Cicero says, must be kept with the Enemy; who Edition: current; Page: [1545] also tells us in another Place,3 that an Enemy retained some Rights in War, that is, not only natural ones, but also some derived from the Consent of Nations.
2. Neither does it from hence follow, that he who has extorted such a Thing in an unjust War, may with a safe Conscience, keep what he has got, or compel the other Party to stand to his Covenants, whether sworn or not sworn. For internally, and in the very Nature of the Thing, it still continues unjust: Neither can this internal Injustice of the Act be taken away, but by a new and entirely free Consent of the Promiser.
XII. What is to be understood by such a Fear as is allowed by the Law of Nations.XII. Further, whereas I have said that Fear is accounted just, which is caused in a solemn War,1 it is to be understood of such a Fear as the Law of Nations allows of. For Instance, if any Thing be extorted thro' the fear of Ravishment, or any other Terror, contrary to our Faith given, this ought to be adjudged by the Law of Nature, because the Law of Nations does not extend so far as to authorise any such Fear.
XIII. That Faith is to be kept even with the Perfidious.XIII. 1. That Faith is to be kept even with those that are perfidious, I have already said,a in treating of the Obligation of Promises in general; and it is likewise the Doctrine of1 St. Ambrose: Which doubtless extends to Enemies that are treacherous; such as the Carthaginians, with whom nevertheless the Romans inviolably kept their Faith. Valerius Maximus Edition: current; Page: [1546] says on this Subject,2 The Senate regarded themselves, not those to whom they performed their Engagements. And likewise Salust,3 In all the Punic Wars, tho' the Carthaginians in Time of Peace, and of Truce, were often guilty of most villanous Practices, yet they (the Romans) never returned the like to them, when they had an Opportunity.
2. Appian speaking of Servilius Galba, who put the Lusitanians to the Sword for breaking their Alliance, after having deceived them in his Turn by a new Treaty, observes,4 He avenged one Treachery by another, and to the Scandal of the Romans, imitated the Barbarians. The same Galba was afterwards accused for it by Libo, aEdition: 1738; Page: [693] Tribune of the People; which Valerius Maximus5 relating, thus censures it: Compassion, not Equity, pleaded in that Cause; for the Absolution, which his own Innocency could not demand, was granted him in respect of his Children. And Cato6 writes in his Originals, he would certainly have suffered, if his Children and Tears had not interceded for him.
XIV. Not if the Condition ceases, which happens when the other Party refuses to stand to his Part of the Agreement.XIV. But we must also observe, that there are two Ways, where by to avoid the Crime of Perfidiousness, and yet not perform the Promise; namely, in Default of the Condition, or by Compensation. The Promiser is not properly discharged for Want of the Condition; but the Event shews, that there had been no real Obligation, since he did not intend to engage himself but upon Condition. To which we may refer this,1 if the other do not perform what he was bound on his Part to do first. For all the Articles of one and the same Agreement seem to be included one in the other, in the Manner of a Condition, as if it had been thus expressed, I Edition: current; Page: [1547] will do these Things thus; provided the other also do what he has promised. Therefore Tullus,2 in his Answer to the Albans, calls the Gods to witness, [[which]]† of the two Nations had scornfully sent back the Embassadors reclaiming their own, that all the Miseries of War might light upon them. Ulpian observes,3 He shall not be held a Confederate, who has renounced his League, because some Condition, on which it was made, is not performed. For which Reason, when it is otherwise designed, this express Clause is usually added, if any Thing be done contrary to this or that Article, yet shall the rest be in full Force.
XV. Neither when there is a just Compensation opposed.XV. We have elsewherea declared the Original of Compensation, that is,1 when we cannot otherwise recover what is our own, or what is justly due to us, we may take from him, who either keeps what is ours, or is indebted to us, the full Value thereof in any Thing else; whence it follows, that we may much more keep what is actually in our Possession, whether corporeal or incorporeal. Whatever therefore we have promised, we need not perform, if it be of no greater Value than that of ours, which the other Part injuriously detains from us.2 Seneca says in his sixth Book of Benefits, Thus the Creditor is often cast by the Debtor, when he has upon some other Account taken more than the Value of his Debt. Nor does the Judge only sit between the Creditor and the Debtor, who may say to the Plaintiff, You lent your Money. What then? You now possess Land, which you never purchased, wherefore upon a just Valuation, depart you hence a Debtor, who came a Creditor.Edition: current; Page: [1548]
XVI. Tho' by another Contract.XVI. It will be the same Case, if he with whom I deal owes me as much, or more, upon any other Contract, and I cannot otherwise recover it. Indeed in Courts of Justice, Seneca1 says, certain respective Actions of the Parties are not granted at the same Time; but this is a pure Effect of the Disposition of the civil Laws, to which we are bound to conform. Each Law has its Rights apart, which it has been thought proper not to mingle with those of other Laws; as the same2 Author observes. But the Law of Nations allows no such Distinctions, provided there be no other Hopes of recovering our own.
XVII. Or some Damage done.XVII. The same may be said, where he that exacts a Promise, owes nothing in Consequence of an Agreement, but hath damnified the Promiser.1 As the same Seneca testifies, The Farmer is not bound to his Landlord, tho' his Lease be not can-Edition: 1738; Page: [694] celled, in Case he wilfully tramples down his Corn, or cuts down his Trees; not because he has received what he agreed for, but because he has prevented his Tenant's receiving whereby he might pay him. Then he gives other Instances.2 You have driven away his Cattle, you have killed his Slave.3 And again, It is lawful for me to compare the good that a Man has done me, with the Hurt he does me, and then declare, whether I am more indebted to him, or he to me.
XVIII. Or for some Punishment due.XVIII. Lastly, whatsoever is also due by way of Punishment, may be balanced against the Thing promised. Which in the same Place of Seneca is at large explained.1 Thanks is due for a Kindness, and Revenge for an Injury. I neither owe him Thanks nor he Punishment to me, we are fully Edition: current; Page: [1549] discharged one of another. And again,2 By comparing the Benefits and Wrongs which I have received, I shall find whether there does not remain something due to me.
XIX. How these take Place in War.XIX. 1. But as amongst contending Parties at Law, if they have made any Agreement whilst the Suit is depending, none of them can compensate what he has promised, either by the Thing contended for, or the Costs and Damages of the Suit: So during the Continuance of the War, neither can that which first occasioned the War, nor the Damages allowed by the Law of Nations in War, be compensated. For the very Nature of the Engagement, which without that would be reduced to nothing, sheweth, that all the Disputes of War were set aside: Otherwise there could be no Agreement made so firm that might not be evaded. Whereto I may properly apply that Saying,1 of the same Seneca, whom I have cited so often, Our Ancestors would allow of no Excuses, that Men might be assured that Faith was strictly to be kept. For it were better not to admit of an Excuse, tho' just, from a few, than encourage every one to make them.
2. But what is it then that may be compensated by the Thing promised? That which is due to us by any other Convention made during the War; or on account of the Damage done us by Acts of Hostility in the Time of Truce; or in Consequence of an Outrage committed on our Embassadors, or any other Action condemned by the Law of Nations.
3. But we must observe, that this Compensation be made between the same Persons, and that the Right of no third Person be injured; yet so that the Subjects Goods must stand engaged for the Debts of their own State by the Law of Nations, as I have saida elsewhere.
4. To which we may add, it is the Part of a generous Soul to keep firm to his Treaties, even after Injuries received; on which Account that wise Indian, Jarchas,2 highly commended the King, who being injured by a Edition: current; Page: [1550] confederated Neighbour, Would not break his Faith given, saying, That he had sworn so solemnly, that he durst not hurt the other, no not after great Provocation.
5. Now what Questions use to arise concerning Faith given to Enemies, may almost all of them be resolved, by the Rules we have establishedb above in treating of the Effect of Promises in general, and of the Oath that accompanies them in particular, of Alliances and publick Treaties, as also of the Right and Obligation of Kings, and the Interpretation of obscure or ambiguous Clauses. Yet that the Use of the Principles we have laid down may be better perceived, and to clear any Doubt that may arise hereafter, I shall not think much to point out some of those special Cases which are most remarkable, and most frequently occur.Edition: 1738; Page: [695]
I. The Division of Faith between Enemies, in order to what follows.I. All Agreements between Enemies depend upon Faith, either expressed or implied. Faith expressed, is either publick or private. Publick is either of the supreme or subordinate Powers. That of the supreme Powers, either puts an end to the War or is of Force during its Continuance. Among those Things that conclude a War, some are looked on as Principals, some as Accessories. The Principals are those very Things that finish the War, either by themselves as a Treaty of Peace, or by Consent that it be referred to another Thing, as the Decision of Lot, the Success of a Battle, the Judgment of an Arbitrator; whereof the first is purely casual, but in the two others the Chance is moderated by the Strength of the Mind or of the Body of the Combatants, and by the Power given to the Judge.
II. The Power of making Peace is in the King, if the Government be Regal.II. They who have Power to begin a War, have likewise Power to enter upon a Treaty to finish it; for every Man is the best Manager of his own Affairs;a whence it follows, that in a War on both Sides publick, it is wholly in their Power who enjoy the supreme Authority, which in a Government truly monarchical1 belongs to the King, unless there be any Thing that hinders him from exercising his Right.Edition: current; Page: [1552]
III. What if the King be an Infant, Mad, a Prisoner, an Exile?III.a For if a Prince be not out of his Minority, (which in some Kingdoms is determined by Law, in others by probable Conjectures) or be not in his true Senses, he is not capable of making Peace. The same is to be said1 of a King that is a Prisoner, if his Kingdom had its first Rise2 from the Consent of the People; for it is not to be supposed, that the People would confer the Sovereignty upon one, with a Power even to exercise it at a Time when he is not Master of his own Person. Therefore in such a Case not the full Sovereignty, but the Exercise of it, and as it were the Guardianship is in the People, or him whom they shall delegate. But of those Things which are privately his own, whatsoever a King, tho' a Prisoner, shall Contract, will be valid, according to the Principles which we shallb establish concerning private Agreements. But what if a Prince be an Exile,3 is it in his Power to make Peace? Yes4 certainly, if it appear that he has no Dependence upon any Person. Otherwise his Condition would be little different from that of a Prisoner, for there are Edition: current; Page: [1553] Prisoners at large. Regulus refused to declare his Opinion in the Senate,5 alledging, that as long as he was bound by an Oath to his Enemies, he could not rightly be a Senator.
IV. In an aristocratical or democratical State this Power is in the Majority.IV. In an Aristocracy, or Democracy, the Power of making Peace shall be in the major Part: In the one of the Sovereign Council, in the other of the PeopleEdition: 1738; Page: [696] who have a Right to vote according to the Custom of the Country, as we havea said in another Place. Therefore Things thus agreed upon, shall be obligatory even upon those who dissented from them. As in Livy,1 When it shall be once decreed, it must then be maintained as a good and profitable Alliance by all, even those who before were against it. Also Dionysius Halicarnassensis,2 It must be obeyed as just, whatsoever the Majority has decreed. And Appian, All are obliged to obey a Decree, and no Excuse to be admitted against it. As also Pliny,3 What has pleased the most, must bind the rest. But they may, if they please, make use of the Advantages of the Peace concluded against their Opinion.
V. How the Sovereignty or any Part thereof, or the Goods of a Kingdom, may be alienated to obtain Peace.V. 1. Now let us see what Things are subject to such an Agreement. Most Kings in our Days, holding their Kingdoms not as patrimonial, but as usufructuary, have no Power by any Treaty to alienate the Sovereignty in Whole, or in Part: Yea, and before they come to the Government, at what Time the People are their Superiors;1 such Acts may Edition: current; Page: [1554] [[by]]† a fundamental Law, for the future be rendered absolutely void and null; so that even as to Damages and Interest, they shall be no ways binding. For it is probable, that Nations thought fit to ordain that2 in that Case, the other Party should have no Action against the King for Damages and Interest, since, if that took Place, the Goods of the Subjects might be seized, as answerable for the King's Debt; and so the Precaution that might have been taken to hinder the Alienation of the Sovereignty, would become entirely useless.
2. But that the entire Sovereignty may be firmly alienated, the Consent of the Whole Body of the People is required; which may be done by their Representatives, whom they call the Orders or States. And that any Part of the Kingdom may be firmly alienated a twofold Consent is required, both of the Whole Body, and especially of that Part which is to be alienated, which cannot be divided from the Body to which it was united against its Will. But yet in Case of extreme Necessity, and otherwise unavoidable, that very Part may firmly convey the Government over themselves to another without the Consent of the People,3 because it is probable that Power was reserved, when civil Societies were instituted.Edition: current; Page: [1555]
3. But in patrimonial Kingdoms, nothing hinders, but that a King may alienate his Crown as he thinks fit. But it may happen to be so, that that King may not have Power to alienate any Part of his Dominion, as if he received it as his Propriety4 upon Condition not to divide it. But as concerning those Things which are called the Goods of the Kingdom, they may become the King's Patrimony two Ways, either separably, or inseparably with the Kingdom; if this latter Way, they may be transferred, but not without the Kingdom; if the other, without it.
4. But those Kings, whose Kingdoms are not patrimonial, can scarcely be thought to have a Power to alienate the Goods of the Kingdom, unless it plainly appear by some fundamental Law or Custom, that has never been opposed, that such a Power was given them.Edition: 1738; Page: [697]
VI. How far the People or Successors are obliged by a Peace made by the King.VI. We have elsewherea said, how far the People and the Successors may be bound by the Promise of a King; namely,1 as far as the obligatory Power is comprehended in the Sovereignty; which should neither be drawn out to an Infinity, nor confined within too narrow Bounds; but we ought to consider as valid in that Respect whatever the Sovereign engages himself to do for apparent Reasons. It is a different Thing, if a King be the absolute Lord of his Subjects, and his Rule be rather despotical than civil,2 as having brought them into Bondage by Conquest; or have obtained the Property of their Goods, without being Master of their Persons, as Pharaoh when he had purchased all the Land of Egypt, or as those who receive3 Strangers into their private Lands. For in this Edition: current; Page: [1556] Case, besides a regal Right, there accrues another Right, which renders an Engagement valid, which a bare regal Power of itself could not do.
VII. The Goods of Subjects may by a Peace be granted away for the publick Good, but with Condition of repairing Losses.VII. 1. This also is often disputed, what Right Kings have to dispose of the Goods of private Men to procure aaPeace, who have no other Power over the Goods of their Subjects, than as they are Kings. I have alreadyb said, that the State has an eminent Right of Property over the Goods of the Subjects, so that the State, or those that represent it, may make Use of them, and even destroy and alienate them, not only upon an extreme Necessity, which allows to private Persons a Sort of a Right over Men's Goods; but for the publick Benefit, which ought to be preferred to any private Man's Interest, according to the Intention, reasonably presumed, of those who first entered into civil Society.
2. To which we must add, that the State is obliged to repair the Damages, sustained by any Subject on that Account, out of the publick Stock; so that he himself who hath sustained the Loss, contribute, if it be necessary, according to his Quota, to the discharge of that publick Debt. Neither shall the State be released from this Obligation, tho' at present it be not able to satisfy it, but whenever the State shall be in a Capacity, this suspended Obligation shall resume its Force.Edition: current; Page: [1557]
VIII. What of Things already lost in War.VIII. Neither can I here generally admit the Opinion of Ferdinandus Vasquius, that a State is not obliged to repair such Damages caused by War, because the Right of War permits such Damages. For this Right of War, (as we havea elsewhere explained it) partly Respects other Nations, and partly thoseb that are at War among themselves; but it does not extend to the Members of the same State, who since they are closely associated, it is equitable, that they should esteem each Man's Loss, sustained on Account of the Association,1 as common to all; yet this also may beEdition: 1738; Page: [698] constituted by the civil Law, that no Action may be brought against the State for Damages by War,2 in order to make every Man more ardent to defend his own.
IX. No Distinction here between Things got by the Law of Nations, and those by the civil Law.IX. There are some that place a vast Difference between those Things which are the Subjects by the Law of Nations,1 and those which are theirs by the civil Law; that they may allow the Prince a larger Right over these, even of taking them away without Cause or Satisfaction; but not so over the other: But falsly. For the Right of Property, whatever be the Title of it, has always its proper Effects by the Law of Nature itself; so Edition: current; Page: [1558] that it cannot be taken away, but for such Causes as are naturally2 inherent in the Property, or such as arise from some Fact of the Proprietor.
X. What is done by a King, is taken by Foreigners to be for a publick Good.X. But whether the publick Interest required that the Goods of the Subjects should be granted away by a Treaty, which a King ought not to do but for such a Reason, is a Question to be decided between the King, and the Subjects, as that of repairing Damages regards the State, and particular Persons. For to Strangers that contract with him the bare Fact of the Prince is sufficient, not only from the Presumption which the Dignity of his Person brings with it, but also from Law of Nations, whicha allows the Goods of Subjects to stand obliged by the Fact of the King.
XI. A general Rule for the interpreting Articles of Peace.XI. 1. But as to the true Understanding of the Articles of Peace, we must here observe, what has been saida before. The more favourable any Article is, the more largely it should be taken; and the less favourable it is, the more strictly it should be understood. If we consider the bare Law of Nature, there is nothing more favourable than what tends to this, that every one should enjoy his own. Which the Greeks express thus, ἕχαστον ἔχειν τὰ ἑαυτον̂. Wherefore where the Meaning of the Articles is ambiguous, it should be taken in this Sense, that he that has the Justice of the War on his Side, should obtain what he took up Arms for, and also recover his Costs and Damages, but not that he should get any Thing farther by way of Punishment, for that is odious.
2. But because in treating of a Peace it seldom happens, that either the one or the other of the Enemies owns he had been in the wrong; therefore in Articles of Peace, such an Interpretation should be admitted, as may according to the Justice of the War make the Balance1 even on Edition: current; Page: [1559] both Sides; which is generally done two Ways. For either it is intended, that those Things whereof the Possession has been disturbed by War, should be put on their antient Foot, (which are the Words of Menippus in his Oration, wherein he treats of the several Sorts of Leagues) or as the Greeks, say,2 ἔχοντες ἃ ἔχουσι, That Things should remain as they are.
XII. In doubtful Cases, it is believed that Things should remain as they are.XII. 1. Of these two Senses, in a doubtful Case, the latter is more readily presumed, because what it includes is more easy to be done, and it brings no Alteration. Hence Tryphoninus observes, that after the Peace such Captives only are to return by Postliminy, as are expressly mentioned in the Treaty, as we have proved elsewhere1 by invincible Arguments, in following the Correction of Faber. So Fugitives also are not to be restored, unless stipulated.2 For by the Law of War weEdition: 1738; Page: [699] receive Deserters, that is, by the Law of War we are allowed to entertain, and list among our own Troops such as quit their own Party. All Things by such an Agreement continue his, who is possessed of them.
2. But that Word possessed is taken not civilly, but naturally; for in War a Possession in Fact is sufficient, neither is any other required. Lands, I have alreadya said, are then possessed, when they are inclosed by some Fortifications; for such as are only encamped upon for a Time, are not here respected. Demosthenes3 in his Oration for Ctesiphon, says, that Philip made haste to possess all the Places he could possibly, knowing well that at the concluding of the Peace, he should keep all that he had Edition: current; Page: [1560] in his Possession. But incorporeal Things4 cannot be possessed, but eitherb by the Things to which they adhere, (as the Services of Manors) or by the Persons whose they are.5 It is not however necessary to be Master of the Person, in order to possess this Sort of Things, when the Question is concerning a Right, which can only be exercised in the Country, which was formerly the Enemies.
XIII. What if it should be agreed that Things should be restored to the same Condition that they were in before the War begun?XIII. In that other Kind of Agreement, whereby the Possession of Things disturbed by War, is to be restored, we must observe, that the last Possession immediately before the War is here meant; yet so as those private Persons that were then unjustly ejected,1 may have recourse to Justice, either to obtain a provisional Decree, whereby they may be put again in Possession, or to claim their Estate.
XIV. Then they who were before free, and have voluntarily submitted themselves, are not to be restored.XIV. But if a free People shall1 voluntarily submit themselves to either Party engaged in War, this Article of Restitution cannot reach them; Edition: current; Page: [1561] because it only relates to those Things which were done by Force, Fear, or otherwise by a Treachery not allowable but in regard to an Enemy. Thus though the Peace were concluded among the Greeks, the Thebans yet2 retained Plataea, pretending That they were possessed of it, not by Force nor Treachery, but by the voluntary Surrender of the Inhabitants. And by the same Right was Nisaea3 retained by the Athenians. T. Quinctius used the same Distinction against the Aetolians, replying, That was the Law of Cities taken by Force, but the Cities of Thessaly freely4 submitted themselves unto the Roman Dominion.
XV. Damages by War, if in doubt, are supposed to be forgiven.XV. If there be no Clause whereby it is otherwise agreed upon, it is to be supposed in every Peace, that no Action shall be commenced for Damages done in War; which also is to be understood of those done between private Persons,1 these being also the Effects of War. For in a Edition: current; Page: [1562] Doubt, those who treat of Peace,Edition: 1738; Page: [700] are presumed with Reason to do it on such a Foot, that there be nothing which supposes the one or the other guilty of Injustice.
XVI. But not those before the War due to private Persons.XVI. Yet those Debts, which were due to private Persons at the beginning of the War,1 are not to be accounted forgiven, for these are not acquired by the Right of War, but only forbidden to be demanded in Time of War; therefore the Impediment being removed, i.e. the War ended, they retain their full Force. But tho' it ought not to be easily presumed, that what was a Man's Right before the War is taken from him, for this Cause chiefly (as Cicero2 well observes) Civil Societies were first constituted, that every one might keep his own, yet this must be understood of that Right, which is derived from the Inequality of Things.Edition: current; Page: [1563]
XVII. Punishments also before the War publickly due, if in doubt, are believed to be forgiven.XVII. It is not so concerning the Right to Punishment; for this Right, as far as it concerns Kings, or People, is for this Reason presumed to be remitted; lest the Peace should not be compleat, if it left any old Grudges behind, which might in Time renew the War. Wherefore unknown Injuries are also comprehended in the general Terms, as the Action1 of the Carthaginians in drowning some Roman Merchants, was remitted by the Romans, before it was discovered to them, as Appian relates. Dionysius2 Halicarnassensis says, Those are the best Reconciliations, which leave behind nothing of Resentment, or Ill-will. And also Isocrates,3 After a Peace is concluded, it is base to remember former Injuries.
XVIII. What of the Right of private Persons to exact Punishment.XVIII. There is not the same Reason that private Men should be thought to remit the Right of demanding Punishment, because this may without War be judicially required; but since this Right is not ours in the same manner, as that, which arises from Inequality, and besides, Punishments having always something odious: The slightest Conjectures that may be drawn from the Terms of the Treaty, are sufficient to found a just Presumption, that this also is passed by.Edition: current; Page: [1564]
XIX. That Right which before the War was publickly claimed, but disputed, is easily presumed to be forgiven.XIX. But whereas we have said, that the Right, which we had before the War, should not easily be thought to be remitted, this indeed holds very true in the RightEdition: 1738; Page: [701] of private Men. But as to the Right of Kings and Nations, a Remission may be more easily presumed, if the Terms of the Treaty, or probable Conjectures drawn from them, lead us to that Interpretation; but especially if the Right in question were not clear, but in dispute. For it is humane to believe that those who make Peace intend sincerely to stifle the Seeds of War. The same Dionysius Halicarnassensis well observes,1 We are not so much to endeavour to patch up a broken Friendship for the present, as to take Care to prevent our being involved again in the same War. For we are met here not to put off the Miseries of War, but entirely to take them away; which last Words are almost taken Verbatim from Isocrates, in his Oration concerning Peace.
XX. Things taken after Peace to be restored.XX. Whatsoever is taken away after the Peace is absolutely concluded, is to be restored, for from that Time the Right of War immediately ceased.
XXI. Some Rules of Agreement whereby Things taken in War are to be restored.XXI. But of those Articles which relate to the Restitution of Things taken in War, those in the first Place may be more largely interpreted, that are mutual, than1 those that concern only one Party. Next, those relating to Persons2 are more favourable than those that respect Things; and even among those that relate to Things, they that concern Lands3 Edition: current; Page: [1565] are more favourable, than those that respect Moveables; and also among these, they that are in4 Possession of the State, more than those of private Persons. And again, among those in the Possession of private Men, they are5 more favourable, that are possessed under a gainful, than those under a chargeable Title, as Things bought with Money, and those held in Dowry by Marriage.
XXII. Fruits, to be restored.XXII. To whom any Thing is granted by Articles of Peace, to whom are also all the Profits allowed1 from the Time of that Grant, but not before; as Augustus Caesar well argued against Sextus Pompeius, who having Peloponnesus granted to him, would have also had all the Tributes that were in Arrears for some Years past, before the Time of that Grant.Edition: current; Page: [1566]
XXIII. Of the Names of Countries.XXIII.1 The Names of Countries are to be taken according to the present use, not so much of the common People, as of intelligent Persons, for such Affairs are commonly managed by Men of understanding.Edition: 1738; Page: [702]
XXIV. Of Reference to some former Agreements, and of the Obstruction here.XXIV. These two Rules are of frequent use, viz. as often as Reference is had to some precedent Article, or antient Treaty, so often the Qualities or Conditions expressed in the preceding Article or antient Treaty are supposed to be repeated; and he shall be reputed to have fulfilled his Agreement, who was willing to have done it,1 if he had not been prevented by the other, who quarrels with him on that Head.
XXV. Of Delay.XXV. But whereas some affirm, that an Excuse is allowable for a short delay in the Performance,1 this holds not true,a unless caused by an unforeseen Necessity. For it is no wonder, that some of our Canons seem2 favourable to such Excuses, when it is their Design to exhort Christians to such Things as are agreeable to mutual Charity. But in this Question of the interpreting Agreements, we do not enquire what is most commendable, Edition: current; Page: [1567] nor what Piety or Religion demands, but what every one may be forced to do; in a Word what is merely of external Right, as we call it in Opposition to the Duty of Conscience.
XXVI. In a doubtful Case the Interpretation is to be given against him that gives the Conditions.XXVI. But where the Meaning is doubtful, the Interpretation ought to be rather made against him1 who imposes the Conditions, as generally the more powerful.2 The Power is in him that gives, says Hannibal, not in him that desires Conditions of Peace: As the Interpretation ought to be against the3 Seller. For he can only blame himself, for not fully explaining himself; but the other receiving Conditions in Words capable of divers Senses, has a Right to take them in the Sense most favourable to himself; agreeable to which is that of Aristotle,4 When Friendship is contracted on the account of Interest, the Profit of the Receiver ought to be the Measure (of what is due).
XXVII. Distinctions to be made between new Occasions of War, and breaking the Peace.XXVII. It is also a daily Dispute, when a Peace may be said to be broken, which the Greeks call παρασπόνδημα; for it is not directly the same Thing, to give a new Occasion of War, and to break a Peace. But there is a great Difference1 between them, as well in regard to the Penalty which the Breaker incurs, as with respect to the Liberty of the injured Edition: current; Page: [1568] Party to disengage his Word in the other Articles of the Treaty. A Peace then may be broke three Ways, either by doing what is contrary to all Peace, or against that which is expressly mentioned in that Peace, or against that which is to be understood from the Nature of every Peace.Edition: 1738; Page: [703]
XXVIII. How a Peace may be broke by doing contrary to what is supposed to be in every Peace.XXVIII. First, It may be done, when that is acted which is contrary to all Peace; as when we are invaded in a hostile Manner, when there is no new Cause of War, which if it may be alledged with any Plausibility, it were better to suppose it an Act of Injustice without Treachery than with it. It seems almost unnecessary to mention that of Thucydides,1 Not they who repel Force by Force, but they who first offer the Violence, are the Breakers Edition: current; Page: [1569] of the Peace. This being granted, we must next see, who are the Invaded, and who by invading break the Peace.
XXIX. What if we be invaded by Allies.XXIX. I find some are of Opinion, that if the Invaders be but their Allies, the Peace is broken. I do not deny but such a Contract may be made, not properly, that one Ally should be liable to Punishment for the Fact of another; but that the Continuance of the Peace may then be deemed to depend on a Condition, partly arbitrary, and1 partly casual. But it is scarce credible, that such a Peace should be made, unless it manifestly appear from the Treaty itself; for it is irregular, and inconsistent with the Design of those that make Peace. Therefore they that thus invade, without the Assistance of others, shall be adjudged the Breakers of the Peace, and it shall be lawful to make War on them, not on others; contrary to which, the Thebans formerly pleaded against the2 Associates of the Lacedemonians.
XXX. What if by Subjects, and how their Act may be judged approved.XXX. But if Subjects commit any Violence without publick Order, we must then see whether this Act of private Men can be said to be approved by the State; to which three Things are required. 1. The Knowledge of the Fact. 2. A Power to punish. And 3. A Neglect in the Person authorised Edition: current; Page: [1570] to do it; as you may easily gather from what has beena said before. 1. The Knowledge may be proved, if the Fact be notorious, or has been complained of. 2. A Power is presumed, unless there be a Rebellion. 3. A Neglect may appear, if the Time be elapsed, which every State generally takes to punish Offenders. And such a Neglect is equivalent to a publick Decree. Neither can what Agrippa says in Josephus [[1]] be otherwise understood, That the King of Parthia should look upon the Peace as broken, if any of his Subjects took up Arms against the Romans.
XXXI. What if Subjects serve under another Prince?XXXI. Another Query is often made, whether it be all one, if Subjects take up Arms, not by themselves, but fight under others engaged in War. The Cerites in Livy clear themselves, by saying, their Subjects took up Arms without any publick Order. The same was the Defence of thea Rhodians. And indeed the best founded Opinion is, that such a Thing ought not to be deemed permitted, unless there areEdition: 1738; Page: [704] apparent Reasons for believing that there was an Intention to permit it; as we see now that is sometimes practised, in Imitation of the old Aetolians, who accounted it lawful,1 To plunder the Plunderer. Which Custom Polybius says was so powerful,2 That tho' they were not at War themselves, but only others, their Friends, or Allies, yet it was lawful for the Aetolians, without any publick Order, to fight on both Sides, and to prey on either Party. And Livy gives the same account of them. They suffer their Youth,3 but without any publick Commission, to fight against their Allies, and often both Parties Edition: current; Page: [1571] have Aetolian Auxiliaries at the same Time. Thus the Hetrurians4 of old denied to assist the Veientes, but yet did not hinder their Youth from going of their own free Will into the Service.
XXXII. What if Subjects be injured, explained by a Distinction.XXXII. 1. Again, the Peace is said to be broken, not only when the whole Body of a State, but if any of the Subjects be forcibly invaded, unless upon Occasion of some new Cause of War. For Peace is made to the Intent that all the Subjects might live in Safety: The Treaty being an Act of the State for all the Members in general, and for each in particular. And if there be even a new Cause of War, it shall be lawful, tho' the Peace subsists, for every one to defend himself and his Goods, against those that attack him. For it is natural (as Cassius says) to repel Force by Force. Therefore this Right cannot easily be thought to be renounced amongst Equals. But it shall not be lawful to revenge ones self, or by Force to recover what has been taken away, unless Judgment be first denied us. For this may admit of some Delay, but that of none.
2.1 But if Subjects make it their constant Practice to commit Outrages contrary to the Law of Nature, so that there be Reason to believe they do it wholly against the Will of their Rulers, and no Court of Judicature can reach them, such as are Pirates; we may both recover our Losses from them, and avenge ourselves on them by Force of Arms, as if they were surrendered to us. But to assault others that are innocent on that Pretence, is directly against the Peace.
XXXIII. What if Allies? With a Distinction.XXXIII. 1.1 A forcible Invasion of our Allies also breaks the Peace, but it must be those2 that are comprehended in the Peace, as I have Edition: current; Page: [1572] aalready shewn in the Case of the Saguntines. This the Corinthians alledge in Xenophon, [[3]] in his 6th Book of the Greek History, We have all sworn to one another. But tho' those Allies do not covenant for themselves, but others do it for them, it is still the same Thing, provided it fully appears that they have ratified it; but as long as it is not certainly known that they have done it, they are reputed as Enemies.
2. But the Case is different of the other Allies, who have neither been engaged in the War, nor comprehended in the Treaty of Peace; as also of4 our Kinsmen and Relations, who are not under our Dependence; neither can an Assault upon them amount to the Breach of Peace. Yet it does not follow, (as we haveb said before) that War may not be made on their account, but then it will be a new War and for a new Subject.
XXXIV. How a Peace may be broken by doing contrary to what is expressed in the Peace.XXXIV. The Peace is likewise broken, (as I have said already) by doing contrary to what is expressed in the Peace; where by doing is likewise comprehended, not doing what we ought to do, and when we should do it.Edition: 1738; Page: [705]
XXXV. Whether any Distinction is to be made between the Articles of Peace?XXXV. Neither can I here admit of any Distinction between the Articles of Peace, as if some were of greater Concern than others: For whatever is inserted in the Articles, ought to be regarded as important enough to be observed. But Goodness, especially Christian Goodness, will more easily forgive small Faults, particularly if they be repented of; as Seneca speaks,Edition: current; Page: [1573]
But to secure the Peace the better, it would be well done2 to add to thea Articles of less Concern, this Clause, That the Violation of any of them shall not be sufficient to break the Peace, but they shall be first put to Arbitration, before recourse is had to Arms, which Thucydides3 records was stipulated in the Peloponnesian Treaty of Peace.
XXXVI. What if some Penalty be added. XXXVI. And I am clearly of Opinion, that it is on that Foot we are to explain the Intention of the two Parties, when a particular1 Penalty is expressly added to the Violation of certain Articles; not that I am ignorant, that such an Agreement may be made, that it shall be in the injured Person's Choice, either to exact the Punishment, or make void the Accommodation. But the Nature of the Affair in question requires rather the other Interpretation, which I mentioned. This is also very plain, and what I haveb [[sic: a]]said before, and proved by the Authority of History, that even in regard to Articles simply stipulated, he who fulfils not his Promise, when the other, who ought first to have executed his Engagements has failed therein, does not break the Peace; since his Obligation was conditional.
XXXVII. What if hindered by absolute Necessity?XXXVII. But if an absolute Necessity occasion the Non-Performance of the Agreement, as if the Thing promised be lost, or taken away, or the doing of it be by some Means or other rendered impossible, the Peace shall not indeed be looked upon as broken; for (as I have said already) Peace does not use to depend upon a casual Condition; but the other Party shall have his Choice whether he had rather wait for the Performance Edition: current; Page: [1574] of the Promise, if there be any Hopes of a possibility of its being done, though late, or receive the full Value of it, or be discharged from any mutual Engagements answerable to this Article, or thought equivalent to it.
XXXVIII. The Peace shall stand firm, if the injured Person be willing to it.XXXVIII. When there is even Treachery on one Side, it is certainly at the Choice of the innocent Party to let the Peace subsist; as Scipioa did formerly after many perfidious Actions of the Carthaginians. Because no Man, by doing contrary to his Obligation, can there by discharge himself from it. For though it be expressed, that by such a Fact the Peace shall be reputed as broken, yet this Clause is to be understood only in Favour of the Innocent, if he thinks fit to make use of it.
XXXIX. How a Peace may be broken, by doing what is contrary to the Nature of every particular Peace.XXXIX. Lastly, We have said, that the Peace may be broken by doing what is contrary to the Special Nature of the Peace concluded.
XL. What comes under the Notion of Friendship.XL. 1. Thus those Things that are done contrary to Friendship, do break that Peace which was contracted under the Condition of Friendship; for what the Duty of Friendship alone may require from others, ought also here to be performed by the Right of Covenant. And to this (tho' not to every Peace,1 for there are some not on the same Account of Friendship, as Pomponius observes,) we may refer many of those Things, which Civilians advance concerning Injuries and Affronts done without force of Arms; and especially that of2 Tully, If any Thing be committed after a Reconciliation made, it shall not be accounted a Neglect, but an Offence, and not imputed to Imprudence, but Perfidiousness; but even here also we are not to judge of it invidiously.Edition: 1738; Page: [706]Edition: current; Page: [1575]
2. Therefore an Injury done to a Relation, or a Subject, of him with whom a Treaty of Peace has been concluded, shall not be deemed as done to himself, unless there was a manifest Design to affront and insult him thereby. Which natural Equity the Roman Laws observe, in Regard to Slaves3 that have been cruelly handled; and Adultery and Ravishment shall be imputed rather to Lust than Hatred: And the invading another Man's Property, shall be reputed rather a new Act of Covetousness than of Treachery.
3. But cruel Threatnings, without some new Cause given, are inconsistent with Friendship; and hereto I will refer the Building of strong Places on the Frontiers, not so much for Defence as Offence, and an unusual raising of Forces, if there be just and apparent Reasons to think that they are prepared against him with whom we have made Peace.
XLI. Whether to entertain Subjects and Exiles be contrary to Friendship.XLI. 1. To1 receive particular Persons as are willing to remove from one Prince's Territories into another's, is no Breach of Friendship; for this Liberty is not only natural, but has something favourable in it, (as we have saida elsewhere). In the same Place I shall rank the Entertainment given to Exiles: For as I haveb before proved out of Euripides, the State has no Right over those whom they have banished. Perseus argues well Edition: current; Page: [1576] in Livy,2 To what Purpose is it to ordain one to be banished, if there were no Place allowed for his Refuge? And Aristides3 calls, To receive the Banished, a Right common to all Mankind.
2. But4 we have alreadyc proved, that it is not lawful to receive whole Towns, or any great Multitudes, who made a considerable Part of the State from whence they came: Nor those who are engaged by Oath, or otherwise, to continue in the Service, or under the Slavery of him whom they have quitted. But we have mentionedd above, that the like hath been introduced among some People, by the Law of Nations, concerning those who have been made Slaves by the Chance of War; and also concerning the delivering up of such who are not banished, but fly from Justice, I have treated ine another Place.
XLII. How War may be ended by Lots.XLII. To decide a War by Lots is not always lawful, but only then, when we have a full Propriety1 in the Thing disputed for: For the State is more strictly ob-Edition: 1738; Page: [707]liged to defend the Lives, Chastity, and such like of Edition: current; Page: [1577] the Subjects; and the King also is more strictly obliged to consult the Safety of the State, than to omit those Means which are most natural to his own and others Security. But yet, if he that is unjustly assaulted, shall, upon due Examination, find himself too weak to make any considerable Resistance, he may reasonably refer his Case to Chance, that by exposing himself to an uncertain, he may escape a certain Danger, which of the two Evils is the least.
XLIII. How by a set Combat, and whether it be lawful.XLIII. 1. Here follows a Question much controverted, viz. whether it may be lawful to decide a War by a Combat of one of each Side,1 as that of Aeneas and Turnus,2 Menelaus and Paris; or between two of either Party, as that between the Aetolians and Eleans; or between three of a Side, as between the Roman Horatii and the Alban Curiatii; or between three hundred on each Side, as that between the3 Lacedemonians and Argives.
2. If we only respect the external Right of Nations, no Doubt but such Combats are lawful, for that4 Right gives a Man Leave to destroy his Enemy how he can; and if the Opinion of the old Greeks, Romans, and other Nations, were right, that every Man had an absolute Power over his own Life, then those Combats are likewise reconcilable to internal Edition: current; Page: [1578] Justice. But wea have several Times said, that this Opinion is repugnant to right Reason and GOD's Commands. We haveb elsewhere proved5 by Reason, and the Authority of Holy Scriptures, that he offends against Charity who kills a Man, for those Things which he can well spare. To which we shall add, that he who sets so small a Value upon his Life, which GOD hath given him as a great Blessing, sins against GOD and his own Soul. If the Thing disputed for be worthy of a War, as the Preservation of the Lives of many innocent Persons, we ought to endeavour it to the utmost of our Power; but to make use of a set Combat, purely as the Trial of a good Cause, or as an Instrument of Divine Judgment,6 is vain and superstitious.
3. There is but one Thing that can render such a Combat innocent and lawful, and that but on one Side,7 when otherwise it is highly probable that he who prosecutes an unjust Cause should be the Conqueror, and thereby cause the Destruction of many innocent Persons; he cannot then be any Ways blamed, who undertakes a Combat on this Account, wherein he has most probable Hopes of Success. And this is also true, Edition: current; Page: [1579] that many Things which are not rightly done, may be by others, tho' not really approved, yet permitted, in Order to prevent greater Mis-chiefs, thatEdition: 1738; Page: [708] could not otherwise be avoided; as in many Places8 Usurers and Prostitutes are tolerated.
4. What therefore we havec said before, when we treated of the Means of preventing a War, if two Persons that dispute about a Kingdom, are willing to try it by single Combat, the People9 may safely allow it, that a greater Calamity which threatens them may be prevented: We may say the same, when it is to concludea War; as Cyrus10 challenged the Assyrian King. And Metius, in Dionysius Hali carnassensis,11 declares, that it is not unreasonable, if the Dispute be not concerning the Power and Dignity of the Nation, but of the Princes themselves,12 that they only should decide the Controversy by their own Swords. Thus we read, that the Edition: current; Page: [1580] Emperor Heraclius sought a single Combat with Chosroez, Son to the King of Persia.
XLIV. Whether the Fact of the King does here oblige the People.XLIV. They who thus refer their Cause to the Trial of a Combat, may indeed lose their own Right, if they have any, to the Kingdom disputed for; but they cannot make over a Right to another, who has none of his own, to those Kingdoms which are not patrimonial. Therefore to make the Agreement valid, there is a Necessity to have the Consent1 of the People, and of Persons already born, that have any Right to the Succession. And even as to Fiefs2 that are not free, the Consent of the Lord, or Superior, is absolutely necessary.
XLV. Who is to be judged the Conqueror.XLV. 1. Often in such Combats it is disputed1 which is the Conqueror. They cannot be reputed conquered, unless the whole Party on one Side be slain or put to flight.2 So in Livy, he that retreats within his own Borders, or into his own Towns, is to be esteemed vanquished.
2. Those three famous Historians, Herodotus, Thucydides, and Polybius, furnish us, each of them, with an Example of Disputes concerning Edition: current; Page: [1581] Victory. The Case related by the first, respects only set Combats; but he that rightly considers the Matter will find, that in all those Combats neither Party had a real Victory. ForEdition: 1738; Page: [709] the Argives were not put to flight by Othryades, but marched off in the Night, supposing themselves Conquerors, and with a Design to carry the News to their Countrymen. Neither did the Corcyreans defeat the Corinthians; but the latter, after having fought with Advantage, seeing a strong Fleet of the Athenians near, without hazarding an Engagement with them, retreated in good Order. Lastly, Philip the Macedonian had indeed taken a Ship of Attalus, forsaken by those of her own Party, but did not rout the whole Fleet: Therefore, (as Polybius observes) he rather behaved himself like a Conqueror, than really thought himself so.
3. But those Things, as gathering the Spoils,3 giving Leave to bury the Dead, and offering Battle a second Time; which, both in the abovementioned Authors and in Livy, you may find set down as Tokens of Victory, prove nothing of themselves, but as they may be attended with other Indications of the Enemy's Flight. And certainly, in a Doubt, the strongest Presumption is, that he who retreats runs away; but where there are no positive Proofs of Victory, the Case is just as it was before the Battle, and so they must either pursue the War, or come to a new Agreement.
XLVI. How War may be ended by Arbitration; and here Arbitration to be understood without Appeal.XLVI. 1. Proculus1 tells us, that there are two Sorts of Arbitrations, one whereof he makes so absolute, that its Sentence must be obeyed, whether just or unjust; which, he says, takes Place when the Arbitration is founded on a Compromise. The other is, when the Judgment2 of the Edition: current; Page: [1582] Arbitrator has Force only so far as is conformable to what an honest and equitable Person ought to pronounce. Of which we have an Example in the Decision of Celsus,3 If a Slave made free shall swear (says he) to do what Services his Patron shall require of him, the Demands of his Master shall be no farther obligatory than consists with Reason and Equity. But this Interpretation of an Oath, tho' it may have been allowed by the Roman Laws, yet it is not agreeable to the plain Sense of the Words simply taken; but this holds very true, that the Word Arbitrator may be taken in both Senses, either as a Mediator only, such as were the4 Athenians, between the Rhodians and Demetrius; or for an absolute Judge, whose Decree must be obeyed. And it is in this Sense that we here take it; as also we havea done before, when we treated of the Means to prevent a War.
2. Tho' even against such Arbitrators, to whose Judgment both Parties have promised to stand, it may be provided by the Civil Law, as in some Places it is, to appeal from it, and exhibit Bills of Complaint;5 yet this cannot be between Kings and Nations. For here can be no superior Power, which may either hinder or disannul the Obligation of a Promise, so that their Sentence must stand, whether just or unjust; to which we may rightly apply that of Pliny,6 Every Man makes him the supreme Judge of his own Cause, whom he has chosen Umpire. For it is one Thing to Edition: current; Page: [1583] speak of the Duty of an Arbitrator, and another of the Obligation of those who have engaged by Promise to stand to their Arbitration.Edition: 1738; Page: [710]
XLVII. Arbitrators in doubtful Cases bound to the Equity.XLVII. We must consider, in the Duty of an Arbitrator, whether he be chosen under the Notion of a Judge, properly so called, or whether a more extensive Power be given him, which, according to Seneca, is in some Manner essential to every Arbitration.1 A good Cause, says he, had better be referred to a Judge than an Arbitrator, because the Judge has a constant Rule and Orders to proceed by, which he must not transgress; but the other having full Liberty to judge according to his Conscience, may retrench or add something, and pronounce Sentence, not according to the rigorous Laws of Justice, but as Humanity and Piety shall direct. And Aristotle2 reckons it, The Duty of an honest Man, rather to go to an Arbitrator than a Judge; giving this Reason for it, For an Arbitrator respects that which is equitable, the Judge that which is legal; and for that Purpose the Use of Arbitrators was invented that Equity may prevail. For Equity, in this Place, does not properly signify, as elsewhere, that Part of Justice which restrains the Generality of the Terms of a Law, according to the Intent of the Law-maker, (for even this is the Judge's Charge) but every Thing which is better done than not done, tho' not according to the strict Rules of Justice, properly so called. But such Arbitrators, as they are frequent among private Persons, that are Subjects to the same State; and are particularly recommended to Christians, by the Apostle St. Paul, 1 Cor. vi. so, in doubtful Cases, so large a Power is not supposed to be granted them. For when there is any Obscurity, we are to follow3 that Side which gives the least Extent to the Things in Question. But especially this is to Edition: current; Page: [1584] be observed between sovereign Princes, who having no common Judge are presumed to tie up the Arbitrator to those strict Rules which Judges are generally confined to.
XLVIII. Arbitrators ought not to judge of Possessions.XLVIII. But this is to be observed, that Arbitrators chosen by a People, or sovereign Power,1 are to give Sentence of the principal Matter, but not of the Possession,2 for Judgments of Possessions belong to the Civil Law: By the Law of Nations, the Right of Possession follows Property; therefore till the Cause is tried, no Innovation is to be made, both to avoid Prejudice, as also because the Recovery of those Things is difficult. Livy, in his History of the Arbitration between the Carthaginians and Masinissa, says,3 The Deputies did not change the Right of Possession.
XLIX. How far the Force of a pure Surrender extends.XLIX. 1. There is another Way of submitting to the Judgment of one in Order to terminate the War, which is to give the Enemy a full Power to dispose of us; whereby1 we surrender at Discretion, and become subject to him to whom we surrender. The Greeks call it† ἐπιτρέπειν τὰ καθ' αὑτὸν. Thus the Aetolians were asked, in Livy, whether they would submit themselves to the Discretion of the Romans. This was the Advice of L. Cornelius Lentulus, as related by Appian, about the End of the second Punick War, concerning the Affairs of the Carthaginians.2 Let the Carthaginians, says he, surrender at Discretion, as the Conquered use to do, and as others have done formerly; then we shall see what we have to Edition: current; Page: [1585] do; they will then take kindly of us whatever we grant them, since they cannot consider it as the Effect of a Treaty concluded with them. Now this makes a great Difference: For whilst we enter into Treaties with them, they will always have some Pretence to break them, alledging, that they had been wronged in some Part of them. For since many Things are capable of a double Interpretation, there will always remain Room for aEdition: 1738; Page: [711] Dispute: Whereas, if they surrender, and we disarm them, and become Masters of their Persons, they will then see that they have nothing properly their own; they will humble themselves, and whatsoever they shall receive from us, they will look upon as of meer Grace and Favour.
2. But here we must also distinguish, what the Vanquished ought to suffer, and what the Conqueror may do, either in Strictness, or without transgressing some Duty, or without exacting what is unworthy of him. The Conquered having yielded himself, must suffer any Thing at the Will of his Conqueror, as being now in Subjection; and if we respect the3 external Right of War, they have nothing but what may be taken from them, their very Lives and personal Liberty, much more their Goods, whether publick, or belonging to private Persons. Livy tells us in another Place,4 that The Aetolians having surrendered at Discretion, were afraid lest they should be ill-used in their Persons. We have citeda in another Place, When all Things are surrendered to the Conqueror, it depends on him to take away or to leave what he pleases. To this agrees that of Livy,5 It was the antient Custom of the Romans, when they would not Edition: current; Page: [1586] make any Treaty, either of Peace or Friendship with a People, to punish them by Arms, till they had surrendered themselves with all their Right, divine and human, given Hostages, delivered up their Arms, and received Garrisons into their Towns. And even sometimes those that yielded themselves might be killed, as we have shewn inb another Place.
L. The Duty of the Conqueror, with Respect to those who thus surrender.L. 1. But the Conqueror, that he may do nothing unjustly, ought first to take Care that no Man be killed, unless for some capital Crime; so also, that no Man's Goods be taken away, unless by Way of just Punishment.1 And even by keeping within these Bounds, as far as his own Security will permit it, it is honourable (to a Conqueror) to shew Clemency and Liberality, and sometimes even necessary, by the Rules of Virtue, according as Circumstances shall require.
2. Admirable are the Conclusions of those Wars which are finished with a general Pardon, as I havea said in another Place. Thus pleaded Nicolaus the Syracusian, in Diodorus,2 They surrendered themselves up, with their Arms, trusting to the Mercy of the Conquerors; it would then be an eternal Shame, that they should be deceived in their Opinion of our Clemency. And again, What Grecian ever condemned them to barbarous Punishment, who yielded to the Mercy of the Conqueror? And thus Octavius Caesar, in Appian, speaks to L. Antonius, coming to surrender himself,3 If you had come purely to treat with me, you should have found me a Conqueror highly incensed at your Actions; but now you come to surrender yourself, your Friends, and your Army to our Discretion, you have disarmed my Anger, and taken from me the Power which you would have been forced to give me, if we had made an Agreement together; for upon Edition: current; Page: [1587] considering what you ought to suffer, and I to grant, I shall prefer my Honour to Revenge.
3. We often meet in Roman Histories4 with these Expressions, Tradere se in fidem, To yield themselves to the Faith. Tradere in fidem & clementiam, To yieldEdition: 1738; Page: [712] to the Faith and Clemency. So in the thirty-seventh Book of Livy, He gave a gracious Audience to the neighbouring Embassadors, that came to surrender their States to the Faith of the Romans. And in the forty-fourth Book, Paulus earnestly desiring that he might be allowed to surrender himself, and all he had, unto the Faith and Clemency of the People of Rome. But it must be understood, that by these Words is meant an absolute Surrender:5 And that the Word Fides in these Places signifies nothing but the Probity of the Conqueror, to which the Conquered yields himself.
4. There6 is a remarkable Story in Polybius and Livy, of Phaneas, an Aetolian Embassador, who, in his Speech to the Consul Manius, said these submissive Words, that The Aetolians did freely surrender themselves, and all they had, to the Faith of the People of Rome. Which when he had affirmed again to the Consul, who asked whether that was really the Design of the Aetolians; the Consul demanded that the chief Authors of the War should be immediately delivered up to him. Phaneas Edition: current; Page: [1588] presently replied,7 We surrender ourselves up to your Faith, not unto Slavery: And added, that it was not the Custom of the Greeks to exact such a Thing as he commanded the Aetolians to do. The Consul answered, he valued not what the Custom of the Grecians was; that, according to the Custom of the Romans, he had an absolute Power over those who had surrendered themselves by publick Deliberation; and presently ordered the Embassadors to be laid in Irons,8 Do ye, having surrendered yourselves to our Faith, pretend to teach us what in Duty and Honour we should do? as Polybius has it. From which Words it is plain, what he to whose Faith any People have surrendered themselves, may do with Impunity, and without violating the Law of Nations. However, the Roman Consul did not make Use of this Power, but dismissed the Embassadors, and permitted the Aetolians to have a new Consultation in their Assembly.9 Thus the People of Rome are said to have answered the Falisci: That they had been informed the Falisci had yielded themselves, not to the Power, but the Faith, of the Romans. And of the Campanians, we read,10 that they had submitted absolutely, and not by any Agreement.
5. But concerning his Duty to whom the Surrender is made, that of Seneca11 is very applicable, Clemency has an unlimited Power to judge: It is not tied down by the Forms of Law, but pronounces according to Equity: It may both absolve and condemn, as it thinks fit. Neither does it signify much how the Person surrendering expresses himself, whether he yield to the Wisdom, Moderation, or Mercy of the Conqueror, for they are Edition: current; Page: [1589] all but Compliments, the Reality of the Matter is, the Conqueror becomes absolute Master to do what he pleases.
LI. Of a conditional Surrender.LI. But yet there are also conditional Surrenders, which are made either in Favour of private Persons, as when1 the saving their Lives, their personal Liberty, orEdition: 1738; Page: [713] some of their Goods2 be expressly stipulated; or in Favour of the whole Body of People, whence may result a mixt Government, of which wea have treated in another Place.
LII. Who may and ought to be given for Hostages.LII. To publick Treaties are sometimes joined Hostages and Pledges, which are a Sort of Accessory. Hostages (we havea said) are either such as freely give themselves, or are given by him that hath the sovereign Power. [[1]] For he that is possessed of the supreme civil Power, has a Edition: current; Page: [1590] Right both over the2 Actions and the Goods of the Subjects; but the Prince, or State, shall be obliged to make Satisfaction to him or his Friends, for any Losses which he may thereby suffer. And if it be indifferent to the State, which, of several Persons, goes as Hostage, it is best to decide that by Lots; but the Lord of a Fief has not this Right over his Vassal, unless he be also his3 Subject; for the Homage and Obedience that he owes him, does not reach so far.
LIII. What Right is given over Hostages.LIII. We have already said, that a Hostage may be put to Death by the external Right of Nations, but not by the internal, unless he himself be guilty of a capital Crime. Neither can they become1 Slaves; but they may even by the Right of Nations enjoy, and leave their Goods to their Heirs. Tho' it is provided by the Roman Law, that their Goods2 should be confiscated to the Publick.Edition: current; Page: [1591]
LIV. Whether Hostages may lawfully escape.LIV. The Query is, whether a Hostage may lawfully Escape? And certainly he may not; if at first, or since, he hath engaged his Word (in Order to have a little more Liberty) that he would not; otherwise, it does not seem to be the Intent of the State that sent him,1 to oblige their Subject from making his Escape, but toEdition: 1738; Page: [714] allow the Enemy to secure him as he pleased: And thus may the Fact of Clelia be defended. But tho' she had not offended in doing it, yet the State could not2 receive and detain their Hostage; whereupon Porsenna declared,3 If they did not send back his Hostage, he would take it as a Breach of the Treaty. Then4 The Romans immediately restored her, according to Covenant, as a Pledge of the Peace.
LV. Whether a Hostage may be lawfully detained upon any other Account.LV. The Obligation of Hostages has something odious in it, both because it is contrary to Liberty, and because it arises from the Fact of another: So that we are here to explain the Sense of the Terms in a Manner that restrains, as much as possible, such an Engagement. And therefore, they who are delivered Hostages on one Account, cannot be detained on another: Which must be taken thus, provided any other Edition: current; Page: [1592] Promise in Question was made, without an Engagement at the same Time to give Hostages; but if we have already broke our Faith in any other Case, or a just Debt be contracted, then the Hostage may be retained, yet not as a Hostage, but by the Law of Nations,a whereby Subjects may be retained Prisoners for their Sovereign's Debts, κατ' ἀνδροληψίαν, by way of Arrest, or Reprisal. Which however may easily be prevented, by inserting an express Clause, that the Hostages shall be1 restored, when that shall be performed for which they were given.
LVI. Upon the Death of the Principal, the Hostage to be free.LVI. He that is delivered as a Hostage only, to release either a Prisoner or another Hostage, if this die the other is released; for by his Death all Right of Pledge dies with him, as Ulpian has said, in the Case of a ransomed Prisoner: Wherefore as in Ulpian's1 Case, the Ransom ceases to be due by the Death of the Person, in whose Room it had been substituted, so in this Case, the Person substituted cannot be here detained. Therefore the Demand of Demetrius to the Roman Senate to be dismissed, was not unreasonable, As being a Hostage for Antiochus, he being dead, he ceased to be so, says2 Appian; and Justin out of Trogus,3 Demetrius being a Hostage at Rome, as soon as ever he heard of the Death of his Brother Antiochus, went directly to the Senate, and told them he came Edition: current; Page: [1593] thither as a Hostage for his Brother, being alive, but now he was dead he could not tell whose Hostage he was.
LVII. The King dying, whether the Hostage may be retained.LVII. But if the King who made the Covenant die, shall his Hostage still be detained? That depends upon what we havea already said, whether the Treaty were personal or real. For Accessories cannot justify us in receding from the general Rule in the Interpretation of Principal Acts, whose Nature they themselves also ought to follow.
LVIII. Hostages may be principally obliged, and one of them is not bound for the Fact of another.LVIII. By the Way we must add this, that Hostages sometimes are not a bare Accessory of the Obligation, but really the1 principal Party; as when by Agree-Edition: 1738; Page: [715]ment, a Person having engaged himself for the Fact of another, and being bound for Damages and Interest, in Case what he promises is not executed, gives Hostages in his stead: And this seems to have been the Meaning of the Treaty concluded near the Furcae Caudinae, as we havea remarked elsewhere. But the Opinion of those who maintain, that2 Hostages may stand engaged for the Fact of one another, even without a mutual Consent, is not only severe but unjust.
LIX. What Obligation lies upon Pledges.LIX. Pledges have some Things common with Hostages, and some peculiar to themselves. What they have in common is, they may be detained for another1 Debt at present due, unless Faith be given to the Edition: current; Page: [1594] contrary. The Peculiar is, that what Contract soever is made concerning these, is not so strictly taken as that concerning Hostages. For this Act is not in itself so odious, because it is natural that Things2 should be kept, not Men.
LX. The Right of Redemption, how lost.LX. We have saida elsewhere, that no Time can prejudice the Right of Redemption, if that be performed for which the Things were first deposited. For that Act which has an antient and manifest Cause, cannot easily be believed to proceed from a new one; therefore tho' the Debtor has left the Pledge for a very long Time in the Hands of the Creditor, it is presumed he has done it, by supposing that the antient Contract still subsisted, and not because he renounced his Right; Unless some evident Conjectures necessarily require another Interpretation.1 As if when a Man was ready to have redeemed it, but met with some Impediment, and afterwards kept Silence so long as to give Reason to suppose that he had voluntarily abandoned it.
I. What a Truce is, and whether it be a Time of Peace or War.I. 1. There are some Things that use to be granted mutually by sovereign Princes, in Time of War, which1 Virgil and2 Tacitus call Belli Commercia, The Commerce of Wars.3 Homer, Συνημόσυναι. Such as Truce, Safe-Conducts, Ransom of Prisoners. A Truce is an Agreement, by which, during the War, for a Time we forbear all Acts of Hostility. I say, during the War: For as Cicero4 says, in his eighth Philippick, there is no Middle between War and Peace. And War is a certain State, which (like Habits) may subsist, even tho' its Actions be for a While suspended. Aristotle says,5 A Man may be virtuous, tho' asleep, and tho' he lead an inactive Life. And again, The6 Distance of Place doth not dis-Edition: 1738; Page: [716]solve Friendship, it only interrupts the present Exercise of it. And Edition: current; Page: [1596] 7Andronicus Rhodius, There may be a Habit, tho' at present it may not operate. So8 Eustratius, An Habit, in Respect to an Ability simply taken, is called an Act, but in Respect to Action itself, is called Power; as Geometry is in a Geometrician when he is asleep. And in Horace, Lib. 1. Sat. 3.
2. So then, as Gellius says,9 A Truce cannot be called a Peace, for the War continues, tho' Fighting ceases. And in the Panegyrick of Latinus Pacatus,10 Truce suspends the Effects of War. Which I here mention, that we may understand11 that whatever is agreed upon to be of Force during a War, has also the same Force during a Truce; unless it fully appear, that it was not so much the general State of War, as the Exercise12 of it, was had Regard to. On the contrary, if any Thing be agreed on concerning Peace, it is of no Force in Time of Truce. Tho' Virgil calls a Edition: current; Page: [1597] Truce13 Pacem Sequestram, A provisional Peace; and Servius,14 A temporary Peace; and so does the Scholiast on Thucydides,15 A temporary Peace bringing forth War. Varro,16 Pacem Castrorum, The Peace of Camps for a few Days. All which are not Definitions, but certain Descriptions, and those figurative: Such also was that of Varro,17 when he calls it Bellorum ferias, War's Holy-Day: He might as well have called it Belli Somnum, War's Sleep. So Statius18 called the Days wherein there was no Pleading, Peace. And Aristotle19 called Sleep The Chain of the Senses; and so you may call Truce, The Fetters of War.
3. But in M. Varro's Exposition (which also20 Donatus follows)21 Gellius finds just Fault with this, that he added, A few Days, shewing that it is sometimes granted for a few Hours, I may also add, for twenty, thirty, forty, nay a hundred Years, of which we have Examples in Livy;22 which may also confute that De-Edition: 1738; Page: [717]finition of Paulus the Lawyer, Edition: current; Page: [1598] 23A Truce is, when it is agreed for a short Time, and for the present Time, that neither Party shall offer Acts of Hostility.
4. But yet it is possible, if it shall clearly appear, that Cessation from Acts of Hostility in general, was the only Reason simply and wholly moving both Parties to make such an Agreement, that then24 whatsoever is said concerning a Time of Peace, may be likewise said of a Truce; not by Vertue of the Word, but from a certain Conjecture of the Intention of the Mind; of which we have treateda elsewhere.
II. The Original of the Word Induciae.II. The Word1 Induciae (a Truce) is not (as Gellius would have it) from inde uti jam, because the Moment it is ended we may act as before: Nor (according to Opilius) from Endoitus, which signifies Entry; because we may then enter freely into Lands of one another; but from inde otium, because there should be Rest from such a Time, as the Greeks call it ἐκεχειρία. For it appears, both from Gellius and Opilius, that the Word (Induciae) was by the Antients written with a t and not a c; and what we now use in the Plural, was certainly used of old in the Singular Number. The antient Manner of Writing was Endoitia; for then they pronounced Edition: current; Page: [1599] Otium, Rest, Oitium, from the Verb Oiti, which we now pronounce Uti, to use; as from Poinaa (we now write Poena, Punishment) is made Punio, to punish; and from Poinus (now Poenus, a Carthaginian) is made Punicus. So of the Word Ostia, Ostiorum, the Entries or Mouths of Rivers, is now made Ostia, Ostiae;b so from Indoitia, Indoitiorum, is made Indoitia, Indoitiae, and thence Indutia, whose Plural (as I said) is now only in use. Gellius says it was also used formerly in the singular Number. Donatus is not much in the wrong, when he would derive Induciae, from in dies otium, A Rest for some Days. A Truce then is a Rest in War, not a Peace; therefore some Historians nicely distinguish it, when they say a Peace2 was refused, but a Truce granted.
III. Upon the ending of a Truce there is no Need of denouncing War again.III. Wherefore, the Truce being expired, there is no Occasion for a new Declaration of a War; for the temporary Impediment1 being removed, the State of War, which was only suspended, and not extinct, returns of itself; as the Use of the Right of Property, and the Exercise of paternal Power, in Regard to a Madman, when he is come to himself. But we read in Livy, that by the Judgment of the Heralds, War was formerly denounced upon the expiring of a Truce. But the old Romans were desirous to shew, by those unnecessary Cautions, how much they loved Peace, and how careful they were not to engage in War, unless for just Reasons. Livy intimates as much, when he says,2 After a Battle sought with the Veientes, at Nomentum and Fidenae, a Truce was granted, but no Peace made, and the Truce expired, and they had rebelled within that Time, yet the Heralds were sent to demand Satisfaction, according to antient Custom: But they would not hear them.
IV. How the Time of a Truce is to be computed.IV. 1. The time appointed for a Truce, is either continual, as when it is made for a hundred Days, or by prefixing a Time when it shall end, as unto the CalendsEdition: 1738; Page: [718] (or first Day) of March. In the former Case the Edition: current; Page: [1600] Time must be1 reckoned according to its just Measure, that is, conformably to its natural Measure: For that Account which is made by Days civil, arises from the Laws and Customs of Nations. In the other Case it is generally asked, whether the Day, the Month, or the Year, on which the Truce is to expire, is meant to be excluded or included.
2. It is certain, that as in natural Things there are two Sorts of Bounds, the one within the Thing, as the Skin is the Bound of the Body; the other without the Thing, as a River is the Bound of the Land: So, according to either of these two Ways, may those Bounds that depend on the Will be conceived; but it seems more natural,2 that the Bound should be taken, which is part of the Thing, That is called the Bound of any Thing which is the extream Part of it, says Aristotle.3 Neither is this against4 common Use. Spurina forewarned Caesar of a Danger that should not exceed the5 Ides (or the 15th) of March. Being asked upon the very Day about it, he said, it was indeed come, but not yet past. Wherefore much more should this Interpretation of Truces be thus understood, where the Edition: current; Page: [1601] lengthning of the Time has in it something favourable, viz. the sparing of human Blood.
3. But yet that Day, from whence a certain Space of Time is to commence, is not to be reckoned in that Space, because6 the Preposition from does not signify Conjunction but Separation.
V. When it begins to bind.V. This I shall add by the Way, that Truces, and such like Agreements, do immediately oblige both Parties consenting, from the Time they are concluded; but the Subjects on both Sides then begin to be bound, when the Truce receives the Form of Law, that is, when it has been solemnly notified,1 which being done, it immediately begins to have a Power to bind the Subjects. But that Power, if the Publication be made only in one Place, shall not at that Instant extend itself throughout the whole Dominion; but upon a convenient Time allowed, to give Notice in every Place. And if any Thing in the mean Time be done by the Subjects contrary to the Truce, they shall not be punishable for it.2 The contracting Edition: current; Page: [1602] Edition: 1738; Page: [719] Parties, however, are not the less bound to repair3 those Damages.
VI. What may be lawfully done during a Truce.VI. 1. What may be lawfully done, and what not, in the Time of Truce, may be understood from the Definition of it. All1 Acts of Hostility are unlawful, either against Persons or Things; that is, whatsoever is then done by Force of Arms against the Enemy. For all such Acts, during the Time of the Truce, is against the Law of Nations, as L. Aemilius, in Livy,2 tells his Soldiers.
2. Nay, whatsoever Things of the Enemy shall by Accident fall into our Hands, tho' they had been formerly ours, are to be restored; because, in Regard to external Right, by which we are here to regulate ourselves, the Property of them has passed to the Enemy. And therefore, as Paulus3 the Lawyer observes, the Right of Postliminy, during a Truce, does not subsist; because Postliminy supposes an antecedent Right of taking by Force; which ceases during a Truce.
3. To come and go, to have free egress and regress, but without any Train or Attendance that may give Umbrage, is also permitted, as4 Servius observes on those Words of Virgil,Edition: current; Page: [1603]
Where he also tells us, that the City of Rome being besieged by Tarquin, and a Truce agreed upon between Porsenna and the Romans, whilst the Circean Games were celebrated in the City, the Enemy's Captains were allowed to come into the City, and contend in the Races, and that proving Victors they were crowned.
VII. Whether to retire back, to repair Breaches, or the like.VII. To retreat back with an Army, which we find in Livy that Philip did, is not a Breach of Truce; nor to repair a Wall, nor to levy Soldiers,a unless it be particularly excepted in the Agreement.
VIII. A Distinction concerning seizing of Places.VIII. 1. It is undoubtedly a Violation of the Truce, to seize on any Place possessed by the Enemy, by corrupting the Garrison. For such an Acquisition cannot be lawful, unless authorised by the Right of War. The same may be said of the Reception of Subjects who would revolt to the Enemy. We have an Example in Livy's forty-second Book,1 when The People of Coronaea and Haliartus, from a natural Inclination to Monarchy, sent Embassadors into Macedon, to desire a Garrison that might defend them against the insupportable Pride of the Thebans; the King told them he could not send them any, having lately made a Truce with the Romans. In the fourth Book of Thucydides, we read that Brusidas received the City Menda, revolting from the Athenians to the Lacedemonians in Time of Truce; but at the same Time an Excuse is added, which is, that he had in his Turn somewhat to charge the Athenians with.
2. It is indeed lawful to take Possession of Places deserted, that is, really deserted, viz. with a Design not to possess them again; but not, if they be left ungarrisoned, whether the Garrisons were withdrawn before or after the Truce. For the Property remaining renders the other's Possession unjust; which shews how groundless the Cavil of Belisarius was, Edition: current; Page: [1604] who, under that Pretence, seized, during the Truce, somea Places from whence the Goths had withdrawn their Garrisons.Edition: 1738; Page: [720]
IX. Whether he may return that is forcibly retained during the Truce?IX. 1. The Query is, Whether he who being detained by some unforeseen and inevitable Accident, is found among the Enemies at the expiring of the Truce, has a Right to return? If we barely respect the external Right of Nations, his Case I do not doubt, is the same1 as his who coming in Time of Peace, upon the sudden breaking out of a War (not having Time to withdraw) is unhappily found among his Enemies, who, we havea already declared, is to continue a Prisoner till the End of the War. Neither is it against internal Justice, as the Goods and Actions of the Enemies stand obliged for the Debt of their State, and may be taken by Way of Payment. Neither has he any more Cause to complain than many other innocent Persons, on whom the Calamities of War accidentally fall.
2. It signifies nothing to alledge here what is said of the Excuse of an unforeseen Tempest,2 which has driven a Vessel into some Place where it is subject to Confiscation. Nor that in Cicero's second Book of Invention, concerning a Man of War, by a Storm driven into Harbour, which the Quaestor would have sold by the Law. For those Examples relate to a Punishment which the insuperable Accident secures from; but here we do not properly discourse of Punishment; but of the Use of a Right that for a certain Time lay suspended, yet it would be far more humane, far more honourable, to release such-a-one.Edition: current; Page: [1605]
X. Of the special Agreements of Truces, and what Queries usually arise from thence.X. There are also some Things unlawful during a Truce, from the special Nature of the Agreement. As suppose a Truce were granted only for the Burying of the Dead,1 nothing ought to be changed; so if a Truce be made, that the Besieged should not,2 within such a Time, be assaulted, then it would be unlawful to receive fresh Supplies of Men or Provisions. For since such a Truce is granted to oblige one Party, the other ought not to be prejudiced by it. And sometimes it is agreed in the Truce, that they shall not have Liberty to pass and repass;3 sometimes Protection is granted to Persons, not to Things; wherefore, if in Defence of our Goods we wound any Person, it is not Breach of the Truce. For since it is lawful Edition: current; Page: [1606] to defend our Goods, personal Safety is to be referred4 to that which isEdition: 1738; Page: [721] principal in the Treaty, not unto that which may be deduced from it by consequence.
XI. A Truce broken on one Side, the other may renew the War.XI. If the Faith of Truce be broken on one Side, the other may undoubtedly proceed to Acts of Hostility, without any Declaration; for every Article of the Agreement implies a Condition, as I have said a littlea before. We may find indeed some Examples in History, where some have bore it ought [[sic: right]] to the End of the Truce. But we read also that War was made upon the Hetrurians, and others, for Breach of Truce. From which Diversity of Examples we may infer it to be lawful for the injured Person to have Recourse to Arms; but whether he will or not is left to his own Choice.
XII. What if a Punishment be added.XII. This is certain, that if the Punishment agreed on, be demanded, and be inflicted on the Transgressor, then the other Party1 has no Right to make War; therefore Punishment is inflicted, that other Things may continue safe. So, on the contrary, if the War be renewed, the Offender2 is acquitted from Punishment, since the other had his Choice.
XIII. When private Acts break the Truce.XIII. The Actions of private Persons do not break a Truce, unless the State has some Share in them, either by an Order or an Approbation, which is also implied, if the Offender be neither punished nor delivered up, nor Restitution made.Edition: current; Page: [1607]
XIV. Free Passage without a Truce, how to be interpreted?XIV. A Right to pass and repass beyond a [[Truce]],† is a Kind of Privilege; therefore what we have already said concerning Privileges, must be observed in the interpreting of it. But this is a Privilege not hurtful to any third Person, nor very burthensome to him that granted it, therefore not to be taken in the strictest Sense of the Words, but with some Allowance, within the Propriety of the Terms. And more especially, if it were not granted upon Request, but freely offered. But still the more, if besides a private Advantage,1 a publick one is intended. Therefore we are to reject a strict Interpretation, tho' the Words may bear it, unless it would otherwise create an Absurdity, or that very probable Conjectures of the Intent of the Person may induce us to it. But, on the contrary, an Extension even beyond the proper Signification of the Words shall take Place, to prevent such an Absurdity, or from very reasonable Conjectures.
XV. Who may come under the Name of Soldiers.XV. Hence we gather, that a safe Pass granted to Soldiers, extends not only to inferior Officers, but also chief Commanders; because the Propriety of the Word will allow1 that Signification, though there is also another2 more strict. So under the Name of Clergy3 are comprehended Edition: current; Page: [1608] Bishops. So the Mari-Edition: 1738; Page: [722]ners4 in a Fleet may be called Soldiers; and all in general, who have taken the military Oath.
XVI. To go, to come, to depart, how to be here understood.XVI. 1. Leave given to go1 implies also one to return; not that the Word go includes it of itself, but because otherwise this Absurdity would follow, that a Favour would be intirely useless. If one promises to let us go away in Safety, we are to understand a Permission to depart, without having any Thing to fear, till we shall be got into a Place of Security.2 Edition: current; Page: [1609] It was therefore Treachery in Alexander, to cause them to be murdered in their Return home, to whom he had given Leave to depart.
2. But he that has Leave given him to go away, has not also to come back again; so neither has he that is allowed to come, a Liberty to send; nor on the contrary; for they are distinct Things, neither will Reason3 warrant us to go beyond the Words; but yet, tho' an Error cannot give any Right, it may excuse from Punishment, if any were stipulated. He also that has Leave to come, shall come but once, and not again, unless the Time allowed4 in the Pass gives Room to conjecture otherwise.
XVII. How far a safe Conduct extends to Persons.XVII. The Son must not follow the Father, nor the Wife her Husband; tho' when the Question is about the Right of Dwelling in a Country, the one follows the other: For we used to1 dwell, not to travel, with our Families. But a Servant or two, tho' not particularly expressed, shall be presumed to be allowed, to him who cannot decently travel without them. For he that grants any Thing, is supposed to grant the necessary Consequents, which Necessity is here to be morally understood.
XVIII. How far unto Goods.XVIII. Goods likewise shall be comprehended, not all, but what are necessary for Travellers.
XIX. Who may come under the Name of Attendants, and who under the Name of a Nation.XIX. Under the Name of Attendants we must not understand those whose Character is more odious than that of the Person himself, whose Safety is provided for: Such as are Pirates, Robbers, Fugitives, and Deserters Edition: current; Page: [1610] The expressing the Name of their Country1 in the Passport, plainly shews that the Permission does not extend to others, who are not of that Country.
XX. Whether a Passport be valid upon the Death of the Granter?XX. Licence to pass freely being derived from the Authority with which he who gives it is invested, in a dubious Case, does not cease by the Death1 of the Granter,Edition: 1738; Page: [723] according to what we have saida before, concerning the Grants of Kings, and other sovereign Princes.
XXI. What if it be given only during the Pleasure of the Granter? XXI. It is often disputed, what is meant by this Expression in a Pass, during my Pleasure. And the best founded Opinion is, that it shall last till the Donor shall declare his1 Will to be otherwise, for that is presumed to continue, in a doubtful Case, which is sufficient to produce some Effect of Right: But not if he that granted it be disabled to will, which2 may happen by Death: For the Moment the Person ceases to be, that Edition: current; Page: [1611] Presumption of a Continuance of his Will falls of itself, as Accidents vanish as soon as the Substance is destroyed.
XXII. Whether Security be allowed beyond the Territory of the Donor?XXII. But a safe Pass is a Security to him who has it, even beyond the Territory of the Granter, because it is granted by Way of Protection against the Right of War, which of itself is not confined to any particular Prince's Dominion, as we have saida in another Place.
XXIII. The Redemption of Prisoners favourable.XXIII. The Redemption of Prisoners is a Thing very favourable, especially amongst Christians, to whom the divine Law particularly recommends this Kind of Mercy.1 The Redemption of Prisoners is a great and signal Part of Justice, says Lactantius. To redeem Prisoners, especially from a barbarous Enemy, is called by St. Ambrose,2 the most noble and highest Liberality. The same Author defends his own and the Churches Fact, in selling even the consecrated Vessels to redeem Prisoners. The greatest Ornament of Sacraments, says he, is3 the redeeming of Captives: And many other Things to the same Purpose.Edition: current; Page: [1612]
XXIV. Whether such a Redemption can be forbidden by any Law, explained.XXIV. 1. I dare not then approve, without Restriction, those Laws which forbid the ransoming of Prisoners, as we may read1 of among the Romans. NoEdition: 1738; Page: [724] State so negligent of Captives as ours,2 said one in the Roman Senate. And Livy says, that in the most antient Times Rome had no Compassion for those who were fallen into the Hands of the Enemy. The Ode3 of Horace is well known on this Subject, where he calls the redeeming of Prisoners a shameful Condition, and an Example of dangerous Consequence, a Loss added to the Cowardice of the redeemed Prisoner. But what Aristotle condemns in the Spartan Government, is generally blamed in the Roman; namely, that every Thing in it related too much to warlike Affairs, as if the Safety of their State consisted only in them. But if we would consider it according to Humanity, it were better sometimes to renounce all the Pretensions for which War is undertaken, Edition: current; Page: [1613] than to leave so many Men, either our Kindred or Countrymen, unto intollerable Slavery. [[4]]
2. Such a Law then cannot be esteemed just, unless there appear a Necessity for that Severity, purely to prevent greater, or more numerous Calamities, which are otherwise morally unavoidable. For in such a Necessity, as the Prisoners themselves, by the Law of Charity, should patiently bear their hard Fortune, they may be laid under an Obligation to it, and others prohibited to do any Thing to draw them from it, according to what we havea said in another Place, that a Citizen may be delivered up for the Good of the Publick.
XXV. The Right in a Prisoner may be transferred.XXV. Prisoners taken in War are not made Slaves, by our Laws or Customs. Yet I doubt not, but that Right of demanding a Ransom from one so taken, may be transferred by the Captor to another, for Nature allows even incorporeal Things to be alienated.
XXVI. The Ransom of one may be due to more than one.XXVI. And the same Person may be indebted for his Ransom to several Men; as if discharged by one, before he paid his Ransom, he be taken by another; for these are distinct Debts, from distinct Causes.
XXVII. Whether the Ransom agreed upon may be made void, if the Estate of the Person be then unknown.XXVII. An Agreement made for a Ransom can not be made void, because the Prisoner is found to be much richer than he was thought to be; because by the1 external Right of Nations, which is now the Matter in Question, no Man may be compelled to give a greater Price than what he first agreed for, if there was no Cheat in that Contract; as may be easily understood from what I have saida already concerning Agreements.Edition: current; Page: [1614]