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• The Rights of War and Peace Book Iii
• Chapter I: Certain General Rules, Shewing What, By the Law of Nature, Is Allowable In War; Where Also the Author Treats of Deceit and Lying.
• Chapter II: How Subjects Goods, By the Law of Nations, Are Obliged For Their Prince’s Debts: and of Reprisals.
• Chapter III: Of a Just Or Solemn War, According to the Right of Nations, and of Its Denunciation.
• Chapter IV: The Right of Killing Enemies In a Solemn War; and of Other Hostilities Committed Against the Person of the Enemy.
• Chapter V: Of Spoil and Rapine In War.
• Chapter VI: Of the Right to the Things Taken In War.
• Chapter VII: Of the Right Over Prisoners.
• Chapter VIII: Of Empire Over the Conquered.
• Chapter IX: Of the Right of Postliminy.
• Chapter X: Advice Concerning Things Done In an Unjust War.
• Chapter XI: Moderation Concerning the Right of Killing Men In a Just War.
• Chapter XII: Concerning Moderation In Regard to the Spoiling the Country of Our Enemies, and Such Other Things.
• Chapter XIII: Moderation About Things Taken In War.
• Chapter XIV: Of Moderation Concerning Captives.
• Chapter XV: Moderation In Obtaining Empire.
• Chapter XVI: Moderation Concerning Those Things Which, By the Law of Nations, Have Not the Benefit of Postliminy.
• Chapter XVII: Of Neuters In War.
• Chapter XVIII: Concerning Things Privately Done In a Publick War.
• Chapter XIX: Concerning Faith Between Enemies.
• Chapter XX: Concerning the Publick Faith Whereby War Is Finished; of Treaties of Peace, Lots, Set Combats, Arbitrations, Surrenders, Hostages, and Pledges.
• Chapter XXI: Of Faith During War, of Truces, of Safe-conduct, and the Redemption of Prisoners.
• Chapter XXII: Concerning the Faith of Inferior Powers In War.
• Chapter XXIII: Of Faith Given By Private Men In War.
• Chapter XXIV: Of Faith Tacitly Given.
• Chapter XXV: The Conclusion, With Admonitions to Preserve Faith and Seek Peace.
• Passages of Scripture, Illustrated, Examined, Or Corrected In This Treatise . †
• Appendix Prolegomena to the First Edition of De Jure Belli Ac Pacis
• Bibliography of Postclassical Works Referred to By Grotius
• Bibliography of Works Referred to In Jean Barbeyrac’s Notes

CHAPTER II

How Subjects Goods, by the Law of Nations, are obliged for their Prince’s Debts: And of Reprisals.

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-<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 be able to discharge them; otherwise they shall be, not as particular Persons, but as they are part of the Whole.5Seneca says, If any Man lend Money to my Country, I shall not own myself his Debtor, nor take it as my own Debt,bbut 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, shall<540> contract, either primarily by themselves, or be engaged for by not restoring to others what is their Right; all the 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, 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).5Against 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,6Is 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 People, and the Men of Hermunduli. Which is out of Cincius, in his Res7Militaris. Also, in another Place, Let him be an Enemy, and all that are8under 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 dealt<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 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, That2Aristocrates 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, 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 interpreted<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 of3Julius 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 so4Harpocration, 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 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,1Reprisals among divers Nations, called so by our moderna Lawyers, which the Saxons and English call2Withernam, and the French, where commonly an express Permission must be obtained from the King for that Purpose, Letters of3Mark, and is of Force (as4 Lawyers say) where Right is denied.

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 discharged<543> by the 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 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 τινω̂ν<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,

• 5 Μή τις ἀτεμβόμενος κίοι ἴσης.

• That no one might go without his just Share.

Another Example we have in the Roman History, where Aristodemus, Tarquin’s Heir, seized the Roman Ships at Cumae,6 for the Goods of the Tarquins detained at Rome.7Dionysius 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 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,<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 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 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.

[1 ]See the Beginning of Chap. I.

[2. ]It is determined in the Decretals, that the Heirs of an Incendiary or Usurer, shall make good the Wrong he has done, or Damage caused, out of his Goods. Et Haeredes ejus moneas, & compellas, &c. Lib. V. Tit. XVII. De raptoribus, incendiariis, &c. Cap. V. Quod Filii ad restituendas usurias, &c. Tit. XIX. De usuris, Cap. IX. See what we have said above, B. 11. Chap. XXI. § 19.

[3. ]Grave est non solum legibus, &c. Code. Lib. XI. Tit. LVI. Ut nullus e vicaneis pro alienis vicaneorum debitis teneatur. Leg. unic.

[a ]Cod. l. 4. tit. 12. and tit. 13.

[4. ]Si quid universitati debetur, &c. Digest. Lib. III. Tit. IV. Quod cujuscumque universitatis nomine, vel contra eam agatur, Leg. VII. § 1.

[5. ]Si quis patriae meae pecuniam, &c. De Benefic. Lib. VI. Cap. XX. Deinde ego quoque illi, &c. Cap. XIX. Debebunt autem singuli, &c. Ibid.

[b ]See the Sicilian Laws, l. 1. in fin.

[6. ]The Law has been cited a little above, Note 3. See Cujas upon it.

[7. ]Nullam possessionem alterius, &c. Cod. Lib. XII. Tit. LXI. De Executoribus & Exactoribus, Leg. IV.

[8. ]Inhonestas pignorationes, &c. Novell. LII. Princ. & Cap. I. What the Emperor here calls Pignorationes, is the Translation of the Greek Word Ἐνεχυριασμὸς, and in barbarous Latin it is expressed by the Word Repressaliae, which has been received in the vulgar Tongues; as appears by the Decretals, Et si pignorationes, quas vulgaris elocutio Repressalias nominat, &c. In VI. Lib. V. Tit. VIII. De injuriis, &c. Cap. unic. Where it is better to read with some Manuscripts, Reprensalias; for that Word answers exactly to the Saxon Withernam. But Use has carried it for Repressaliae.Grotius.

See lower, § 4.

[9. ]Foedum est, inter jura publica, &c. Var. IV. 10.

[1 ]This is not an arbitrary or voluntary Establishment, founded upon any pretended Right of Nations, of which the Existence cannot be proved, and where all is reduced to a Custom more or less extended, but which, in itself, has never the Force of a Law. The Right in Question is a necessary Consequence of the Constitution of Civil Societies, and an Application of the Maxims of the Law of Nature to that Constitution. In the Independence of the State of Nature, and before there was any Kind of Civil Government, one could come upon those only who had done the Wrong, or upon their Accomplices; because there was then no Tie between Men, by Vertue of which a Man might be deemed to have consented, in some Manner, to what others did, even without his Participation. But after Civil Societies were formed, that is to say, Bodies, of which all the Members were united together, for their common Defence; there resulted from thence a Community of Interests and Wills; whereby, as the Society, or the Powers which govern it, engage to defend each against the Injuries of every other, whether Citizen or Stranger; so every Individual may be deemed to be engaged to answer for what the Society, or Powers which govern it, do, or owe. No human Establishment, no Tie into which Men enter, can dispense with the Obligation of that general and inviolable Law of Nature, That Damage or Wrong ought to be made good; unless those, who are thereby exposed to suffer Wrong or Damage, have manifestly renounced their Right to demand that Reparation. And when such Kind of Establishments prevents, in certain Respects, the injured from obtaining so easily the Satisfaction due to them, that Difficulty should be made up, by supplying the Persons interested with all other possible Means of doing themselves Justice. Now it is certain, that the Society, or the Powers which govern it, by being armed with the Force of the whole Body, are encouraged to baffle, and may often with Impunity baffle, Strangers, who come to demand something due to them: And every Subject contributes some Way or other to enable them to act in this Manner, so that he may thereby be deemed to consent to it. But if he does not actually consent; there is, after all, no other Means to facilitate, to injured Strangers, the Prosecution of their Rights, become difficult from the united Force of the whole Body, than to authorize them to come upon all those who are Members of it, whether they have or have not consented. Besides, how can Strangers know who those are that actually have or have not given their Consent? If they must wait to be fully informed on that Head, they might, generally speaking, as well continue quiet, and patiently suffer the Injury done them: So that, from a necessary Consequence of the Constitution of Civil Societies, every Subject, whilst he continues such, is answerable, with Regard to Strangers, for what the Society, or the Powers that govern it, do or owe; he may, however, demand to be indemnified, when there is any Fault or Injustice on the Part of his Superiors; or when, having been exposed to suffer unjustly for the Body, what it has cost him amounts to more than the Quota he is obliged to contribute for the publick Good. And if he is sometimes disappointed of this Reparation, it must be considered as one of the Inconveniencies which the Constitution of human Affairs renders inevitable in all human Establishments. The Reasons alledged by our Author, serve to strengthen the Principles I have now advanced, which, when considered together, will, in my Opinion, plainly shew that it is not necessary to suppose here a tacit Consent of Nations.

[2. ]See Pufendorf, Law of Nature and Nations, B. IV. Chap. IX. § 7. Note 5. where this Distinction is explained.

[3. ]Jus autem gentium, &c. Institut. Lib. I. Tit. II. De Jur. Nat. Gent. & Civili. § 2.

[a ]Thom. Summ. Theol. ii. 2. qu. 40. art. 1. Molin. Disp. 120. & 121. Valent. Disp. 3. qu. 16. n. 3. Navarr. c. 27. n. 136.

[4. ]The learned Nicolaus Damascenus distinguishes Wars from these Reprisals, where he shews, that tho’ it were not lawful for Herod to make War upon the Arabian, he might yet ῥύσια λαμβάνειν, use Reprisals, for Debts due unto him by Contract. Josephus, Lib. VI. Antiq. Hist. where he has these Words, Saying that there were five hundred Talents due to Herod, and a Bond given that if the appointed Day of Payment were passed, he might take what he could through all the Country of Arabia, he therefore called this Action, not a warlike Expedition, but a just Execution, to recover his own Due.Grotius.

[5. ]Ob eam rem ego, Populusque Romanus, &c.Livy, Lib. l. (Cap. XXXII. Num. 13.)

[6. ]Isque [P. Sulpicius] rogationem, &c. Idem, Lib. XXXI (Cap. VI. Num. 1.)

[7. ]Quodque Populus Romanus cum Populo Hermundulo, &c. This Passage is part of a Declaration of War which Aulus Gellius has preserved from a lost Treatise of Cincius, De re militari. Noct. Attic. Lib. XVI. Cap. IV.

[8. ]Cneus Manlius being accused of having made War upon the Gauls, tho’ it had been only decreed by the Senate against Antiochus, defended himself with this Reason; that the Gauls were amongst the Troops, and in the Fortresses of Antiochus, and therefore, that the War ought to be deemed declared also against them. Atqui cum Antiocho, non cum Gallis bellum, &c.Livy, Lib. XXXVIII. Cap. XLVIII. Num. 9.

[9. ]Plutarch, In vit. Agesil. p. 602. D. F. See also Xenophon, Hist. Graec. Lib. IV. (Cap. I. § 15.)

[1 ]Demosthenes, Orat. adversus Aristocrat. p. 440. C. See the learned Salmasius, De modo usurarum, p. 212. & seq.

[2. ]Orat. advers. Aristocrat. (p. 440. C.) Grotius.

Our Author reads ἱκέτην instead of οἰκέτην, in the End of this Passage; which Correction I find in the last Edition of Wolfius that I use. But there are some other Places, where he restores the Text, without taking Notice of it, in a Manner which seems to me to be well founded. He might have only added, θήσω γὰρ οὕτω, instead of ϕήσω γὰρ οὕτω, as good Manuscripts, and some Editions have it.

[a ]B. ii. ch. 21. §5.

[3. ]Lib. VIII. § 50. Edit. Amstel.

[4. ]Voc. Ἀνδροληψία.

[5. ]Orta deinde Altercatio est, &c.Liv. Lib. XXXIV. Cap. LXI. Num. 12, 13.

[1 ]It is also writ Ἐνεχυρασμὸς and ἐνεχυράζειν. Salmasius makes some Difference between these Words, according as the iota is retained or left out; De modo usurarum, p. 553. & seqq. But see the late Baron Spanheim upon the Clouds of Aristophanes, Ver. 35. Our Author added here in a little Note, that the Right of Reprizals is expressed also by the Greek Word, Σύλαι: and cites Demosthenes, Orat. pro Coron. and Aristotle’s Oeconomic. Lib. II. The Passage of the latter will be cited in the End of the following Paragraph, Note 9. As for the other, the Term in Question is not in it, that I can find. Our Author saw that Harpocration, at the Word Σύλας, cites that Orator, ἐν τω̂ περὶ τοὐ στεϕάνου τὴς τριηραρχίας: And the Passage, to which Henry de Valois refers us, is: Καὶ μόνοις ὑμι̑ν οὐδαμόσε ἔστιν ἄνευ κηρυκείου βαδίσαι διὰ τὰς ὑπὸ τούτων ἀνδροληψίας καὶ σύλας κατεσκευασμένας, p. 717. B. He has thereupon confounded this little Oration with the famous long one for Ctesiphon, Περὶ τον̂ στεϕάνου, where a different Sort of Crown is spoken of. For the rest, the learned Commentator upon the Greek Lexicographer, whom I have just quoted, alledges several Examples, from good Authors, where Σύλαι and Συλα̂σθαι are taken for a kind of Right of Reprizal.

[a ]Bald. 3. Cons. 58.

[2. ]From Wither or Wider, which signifies again, and Nam or Namp that is to say, taken. This Etymology alone shews that those are mistaken, who, with Mr. Bohmer (Introd. ad jus Publicum Universale, p. 348.) pretend that the Right of Reprisals consists properly, in the refusal of the Sovereign of one Country to do Justice to the Subjects of another Sovereign, who has refused it to his Subjects. This is only a Thing, which has the same Foundation, as what is understood by Reprisals, or is sometimes reduced to the same Thing; because, for Instance, it is all one either to take some Effects from foreign Merchants, or to prevent the People of the Country from paying them what they owe them.

[3. ]This Word is derived from the German Word Marck, that is to say Boundaries; because Reprisals are generally made upon the Frontiers. See the Glossary of Du Cange, upon the Word Marcha.

[4. ]See Bartolus, De Repressaliis, Quaest. V. § Ad Tertium, Num. 9. Innocent. and Panor. in Can. VIII. Decretal. De immunit. Eccles. &c.Dominic. Soto. Lib. III. Quaest. IV. Art. V. Jacob de Canibus, Anchar. Dominic. Franc. in Can. I. De Injuriis, in VI. Fulgosius and Salicetus, in Authent. Omnino, Col. De Act. & Obligation.Jacob de Bello Visu, in Authent. Ut non fiant pignorationes.Sylvest. Verb. Repressaliae.Guido Papa, Quaest. XXXII. Gailius, De Pignor. Observ. I. Num. 5. Francisc. Victoria, De Jure Belli, Num. 41. Covarruvias, in Cap. Peccatum, Part II. § 9. Num. 4. Grotius.

[1 ]He followed in this the Opinion of Julian another Lawyer: Julianus, verum debitorem, post litem contestatam, manente adhuc judicio, &c. Digest. Lib. XII. Tit. VI. De condictione indebiti, Leg. LX. Princ. See Gailius, De pace publica, Lib. II. Cap. VIII. Num. 7 and Ferdinand Vasquez, Controv. Illust. Lib. IV. Cap. X. § 41. Grotius.

Mr. Cocceius in a Dissertation, De vero Debitore sententiâ absoluto, Sect. IV. § 1. & seqq. has racked his Wits to explain the Law here cited, so as to elude the Sense our Author finds, in it, and which is what naturally offers itself. The antient Lawyer there decides clearly enough, that if the Person who is actually Debtor, pays during the Course of the Suit, before Judgment given, he cannot afterwards redemand as not due what he has so paid; and he proves it by this Argument, a major ad minus, that if the Debtor had paid after final Judgment, he could not even then redemand any Thing, tho’ the Cause had been adjudged in his Favour: Quia nec absolutus, nec condemnatus, repetere posset: For this cannot be understood, as simply intended to mean, that the Debtor, who has paid before Judgment, cannot redemand any Thing after it; because as soon as he has satisfied the Plaintiff, the Suit is at an End. There is in the same Title a Law of the Civilian Paulus, the same who recites and approves Julian’s Opinion in this Case, wherein he says, that if, after Sentence past, the Debtor pays of his own free Will (that is to say, without Compulsion but thro’ Error, which must always be supposed on this Subject) even tho’ he has cast his Adversary, he loses thereby the Right of redemanding his Money: Which is founded upon the Principle established by Julian in a general Manner, I mean, that a Debtor continues such by the Law of Nature, whether the Judge condemns or discharges him: Judex, si male absolvit, & absolutus sua sponte solverit, repetere non potest, Leg. XXVIII. Our German Lawyer however goes so far as to maintain, that by Virtue of the Authority, which the civil Law gives to the Sentence of the Judge, the natural Obligation of the Debtor, discharged without Reason, is entirely extinguished, so that he may in Conscience dispense with paying his Debt, or redemand what he has paid thro’ Ignorance. But this is a very evident Example of the Extremes into which People run when they are for reconciling, at any Rate, the Decisions of the antient Civilians, well or ill understood, with the Principles of natural Equity. The Debtor, in the present Question, either believed himself such before the Sentence, or was not convinced of the Debt, till after he was unjustly discharged. In the first Case, he ought not to have pleaded, and is as culpable in so doing, as the Person, with whom any Thing is deposited, is in denying the Trust. In the other, he is very excusable for having refused to pay what he did not believe he owed; but the Moment he discovered himself to be a Debtor, the Obligation of paying begins to display its whole Force. The Judge’s Sentence does not diminish it in the least, and only leaves the Breach of Faith unpunished; supposing the Laws extended so far his Authority. The End, which Legislators propose to themselves, requires no more, as appears from the Principles I have laid down in my Discourse upon the Permission and Benefit of the Laws. Fortherest, if we examine all Mr. Cocceius says, in the Dissertation I speak of, to support his Hypothesis, and reconcile it with the Laws alledged to prove, that a Debtor unjustly discharged continues a Debtor by the Law of Nature, we shall conclude, I believe, that it would be very difficult to understand that modern Lawyer’s Meaning, with out acknowledging, that the antient Lawyers in this as well as many other Things, were of a different Opinion: A Confession, which it would have been as hard to have extorted from Mr. Cocceius, as to have made him own that their Principles were sometimes incoherent, and inconsistent with the Law of Nature. The Reader need only see the extravagant Encomiums he makes upon them in the beginning of that Dissertation.

[2. ]Et quum, per injuriam judiciis, &c. Digest, De Distraction, Pignor. & Hypothec. Leg. XII. § 1.

[3. ]There is an Example of this in Ammianus Marcellinus, where we find that Julian the Emperor seized some Franks, till their King had restored all the Prisoners, as he had engaged to do by a Treaty of Peace: Quatuor comites ejus [Regis Hortarii] quorum ope & fide, &c. Lib. XVII. (Cap. XI. p. 189. Edit. Vales. Gron.) See Leo Afer, where he speaks of the Mountain Beni Gualid, (Lib. III. p. 211. of the old French Translation.) Grotius.

They were not Franks, but Alamanni, whom Julian seized. Besides, they were kept for Hostages; so that this Example belongs to another Subject.

[4. ]These Horses were seized by Augeus King of Elis, and were sent by Nestor’s Father to some Games that were celebrated there:

• Καὶ γὰρ τω̂ χρει̑ος, &c.

Iliad, (Lib. XI. Ver. 697. & seqq.) Hyperochus reigned at that Time in Elis: Nestor killed his Son Hymoneus, who opposed his taking away the Herds of Oxen:

• — Ὅτ’ ἐγὼ κτάνον Ἰτυμονήα, &c.

Ibid. (Ver. 761. & seqq.) Polybius uses the Word Ῥύσια in the same Sense as Eustathius, speaking of the Achaeans, who used Reprisals against the Boeotians, with Philopoemen’s Permission, Excerpt. Legat. XXXIII. See also Excerpt. CXXIII. I find also Ῥυσιάζειν used in Diodorus Siculus to express, to make Reprisals, Excerpt. Pieresc. But Ῥύσια καταγγέλλειν is an Expression used in War, upon a Subject very like this, as we shall see in the following Chapter, § 7. Grotius.

[5. ]Iliad. Ver. 704.

[6. ]Frumentum Cumis quum coemtum esset, &c.Liv. Lib. II. Cap. XXXIV. Num. 4.

[7. ]That Historian relates the Fact otherwise. He says, that the Romans, who had followed Tarquin, and whose Estates had been confiscated at Rome, upon seeing Roman Embassadors come to Cumae to buy Corn, immediately sollicited Aristodemus, King of Cumae, first to put those Embassadors to Death: But not being able to obtain that, they fell in their Demand, and only desired Permission to arrest them by Right of Reprisals, till the Romans had restored them their Effects. Aristodemus set the Embassadors a Time to plead their Cause before him, and left them at Liberty, upon laying down a Sum of Money by Way of Security for their Appearance. As the Suit were commenced, and Nobody kept them in Custody, they fled. This Account is in Chap. II. and XII. of the Roman Antiquities. The Prince upon this caused the Servants, Cattle and Money they had brought for the purchase of Corn, to be seized, Cap. XII. p. 411. Edit. Oxon. (427. init. Edit. Sylb.)

[8. ]The Philosopher says, the Carthaginians had a great number of Strangers in their pay, whose Arrears they were not able to discharge. In order to pay off their Debts, they thought of this Expedient. They put out a Proclamation, that such Citizens and Inhabitants, as had a Right of Reprisals in regard to any State or Person, and were willing to claim it, should declare it. A great number of People presented themselves upon this Proclamation, and Ships, trading in the Euxine Sea under some manifest Pretext, were seized: After which a Time was fixed for judging what was a lawful Prize. By this Means a great Sum of Money was raised, and they were enabled to pay off the Troops, which they disbanded. The State out of its Revenues made Restitution to those who had been seized unjustly. Oeconomic. Lib. II. p. 503. C.

[b ][[sic:a B. 2. ch. 15. n. 7. and ch. 21. § 2. n. 2.]]

[1 ]See an Example of this in the Passage of Homer, cited in the foregoing Paragraph, Note 5.

[2. ]But see what I have said upon the Place referred to in the Margin. Certainly, if our Author’s Opinion took Place, the Right of Reprisals would be very useless to a Christian, when those, against whom he would use it, knew him to be in that Disposition: For they would not fail to defend themselves, till there should bea Necessity of killing them, if he did not let them go.

[b ]B. 2. ch. 1 § 12, 13.

[a ]Decius, Cons. 352. Bald. in leg. 3. Digest, De Offic. Adsessor.

[1 ]But according to our Author himself, the Privileges of Embassadors take Place only with Relation to the Powers to whom they are sent, and not with Regard to those, thro’ whose Dominions they pass: And he requires also, their having been acknowledged and received as Embassadors. See above, B. II. Chap. XVIII. § 5. Wherefore then should they not be liable to Reprisals, on the Part of those, to whom they are not sent; especially as Reprisals suppose certain Dispositions, which approach the State of Hostility?

[2. ]The Law of Nations grants this Right to all those, who cannot obtain Justice from the Sovereign of a Country, without considering whether they are Members of some other civil Society or not. So that for Instance, at the first Institution of civil Societies, when there were still many Individuals, who continued in the Independence of the State of Nature, those Individuals might no doubt use the Right of Reprisals, with Regard to those who were Subjects. Besides, those who being Subjects, use the Right of Reprisals, have not that Right, properly speaking, as Members of a civil Society; because they would have had it independently of that Relation, by Virtue of the Law of Nations, or rather the Law of Nature itself, according to what we have laid down above. Thus far therefore our Author’s Opinion may be admitted. But it is true on the other Hand that Reprisals, being a kind of Act of Hostility, and an Introduction to a War; the End of civil Society requires, that private Persons should not make use of this Right, but with the Permission, either express or tacit, of the Sovereign; as the Commentators upon our Author have observed, who does not explain himself sufficiently in this Place. And in the Example, he alledges of this kind of Reprisals, which was practised by the Athenians, the Power, which the Relations of the Deceased had to seize three Persons of the State, that protected the Murtherer, was founded, as we find, upon a formal Law.

[3. ]This must be understood in the same manner, as what we have just said in the preceding Note. The Refusal which has been made of restoring what was due, excuses the injured Person from keeping as a Pledge, the Things he has seized by Way of Reprisals and authorises him to appropriate them to himself. See Pufendorf, Law of Nature and Nations, B. V. Chap. XIII. § 10. or last. But in a civil Society, the good of Order, and the fear of Consequences, require that the injured Persons be not Judges, and absolute Masters of the Reparation, which they may make to amount too high; and that we should even wait some Time to know whether Foreigners will not come to themselves, and pay what they owe, with the Charges, Damages and Interest.

[4. ]The Venetians followed this Rule of Equity, having taken the Genoese Ships in Galata. But they did not in the least diminish any Thing of the Goods in the Ships taken; their Lading was Wheat and Barley, and salt Fish, taken in the Lakes of Capais and Maeotis and the River Tanais; but these they carefully preserved, and when they had received their Debt, they restored them entire.Nicephor. Gregor. Lib. IX. Grotius.

[b ]See Aegid. Regius, De Act. Supern. Disp. 13. Dub. 7. n. 117.

[5. ]Thus Plutarch (in the Life of Cimon) of the Scyrians: Many of them would not contribute Money, but commanded those, who either had then in Possession, or had taken away other Men’s Goods, to repair the Loss, (p. 483. C. Vol. I. Edit. Wech.) Grotius.