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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 III

Of a just or solemn War, according to the Right of Nations, and of its Denunciation.

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 it<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,2They are Enemies, who publickly denounce War against us, or we against them; the rest are but Pirates, or Robbers. So says Ulpian,3They 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. And Paulus the Lawyer says, They that are taken4by Pirates, or Robbers, continue free. To which we may add that of Ulpian,5In 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 (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-<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.

• 6 Καὶ μὲν δυσμενέες,

• In search of Prey to foreign Coasts they sail,
• And if successful, then do with full Gale
• Return unto their Country, fearing still
• The Gods, that do regard both Good and Ill.

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. Wherefore8Cicero 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 Means necessary for Natives, and Strangers, to preserve, or recover their just Rights.10Dion 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.12Aristides in his Exhortation to the Rhodians unto Peace, shews that many good Laws may be consistent even with<552> Tyranny. And13Aristotle 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 are15Caesar’s own Words. And Tacitus tells us, that the Venedi16robbed 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 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 in1Jeptha,2Arsaces,3Viriatus, 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,5If 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.

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 the<553> other: Whence Ennius calls it published Battles.2Cicero in his first Book of Offices observes, There is no 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 in1Thucydides, οὐ δίκας οὐδὲ λόγοις διακριτέα μὴ λόγω καὶ αὐτοὺς 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 as3Aeli-<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 does6Livy 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 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 to those Rules which I haved already set down, for the preventing the Calamities of War; to which we may apply,9

• Extrema primo nemo tentavit loco.
• No one at first will fly unto Extremes.

And the Command which10 GOD gave theeHebrews, to offer Peace to a City be-<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.

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, as2Servius 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 called4Clarigatio (because the Demand was made clearly and with a loud Voice.) A conditional denouncing of War is thus in5Livy, They are resolved with all their Power to revenge that Injury, unless redressed by the Offender. And in6Tacitus, 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,<556>

• 7Your Neighbour Theseus friendly would obtain
• A decent Burial for the thousands slain.
• If this you grant, then, Thebes, you may depend,
• Theseus, as well as Athens, is your Friend.
• If not, prepare for War, to meet with those
• Whom you have forc’d to be your deadly Foes.

Statius relating the same says,

• Aut Danais edice rogos, aut praelia Thebis.
• Grant Burials to the Greeks, or look for War on Thebes.

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 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 from<553> hence, that it was sufficient, if it was but proclaimed at the next Garrison. As the Heralds in the Case of9Philip 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, as11Servius 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 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 Greeks;<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. For6Arnobius tells us, that many of these Formalities were left off in his Time, and some disused, even in7Varro’s Days.<555> The third Punick War8 was both denounced, and commenced at the same Time. And9Maecenas, in Dion, will have some of these Ceremonies to be peculiar to popular States only.

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,1A 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 against2Ariovistus, were not3 <556> just by the Law of Nations: For 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.

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 arise certain peculiar Effects, which in a War against Robbers, or a War<557> made by a Prince against his own Subjects, will not be allowed. Therefore3Seneca 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 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.

[a ]B. 1. ch. 3.

[1 ]To which the Epithet Just is sometimes applied: Thus a Fight is said to be Just in Opposition to some slight Skirmish: Qui intentiore cura suos, quasi ad justum praelium, paucis adhortatus, &c.Quint. Curt. Lib. III. Cap. XIII. Num. 8. See Pitiscus, upon this Passage, and Albericus Gentilis, De Jure Belli, Lib. I. Cap. II. p. 20, 21.

[2. ]Hosteshi sunt, &c. Digest, Lib. L. Tit. XVI. De verborum significatione, Leg. XCVIII.

[3. ]Hostes sunt, quibus bellum publice Pop. Romanus, &c. Digest. Lib. XLIX. Tit. XV. De Captivis & Postliminio, &c. Leg. XXIV. We find Examples of Persons taken by Robbers in the Poenulus of Plautus and the Eunuchus of Terence. This was also the Fate of Eumaeus, as he relates it himself in the Odyssey of Homer, Lib. XV. (Ver. 402. & seqq.) Grotius.

[4. ]A piratis, aut Latronibus, capti, liberi permanent. Digest. Lib. XLIX. Tit. XV. De Captivis & Postlim. &c. Leg. XIX. § 2. Pompey declared those who had been taken by the Pirates to be free. Appian. Bell. Mithridatic. (p. 237. Edit. H. Steph.) See Herrera, Vol. II. Grotius.

[5. ]In civilibus dissensionibus, &c. Ibid. Leg. XXI. § 1.

[6. ]He insinuates this in speaking of the antient Wars of the Romans, in Opposition to the civil War of Mark Anthony: Ac maioribus quidem vestris, &c. Orat. Philip. IV. Cap. VI.

[1 ]See Pufendorf, Lib. VIII. Chap. VI. § 5. Of the Law of Nature and Nations.

[2. ]Consult what our Author says in his preliminary Discourse, § 24.

[3. ]Procopius describes them thus: A Multitude assembled and united not according to the Laws, but by their Crimes. Vandalic. Lib. II. (Cap. XV.) Grotius.

These Words are in the Oration of Belisarius, upon the Revolt of the Roman Soldiers in Africa.

[a ]B. 2. ch. 15. §5. n. 2 and ch. 20. § 43.

[4. ]In Lib. I. (§ 5. Edit. Oxon.)

[5. ]Geograph. Lib. XI. The Grammarian Saxo relates the same Thing of another People, Lib. XIV. (p. 234. where, however, there is nothing that has any Relation to this Subject.) Plutarch, speaking of the Inhabitants of the Isle of Scyros, says, that formerly they were contented with Piracy, but at Length they had arrived at such a Degree of Wickedness, as to rob the Strangers, who came to traffick with them. Vit. Cimon. p. 483. C. Vol. 1 Edit. Wech.Grotius.

The People Strabo speaks of are the Achaeans, the Zygians, and the Heniochians, all inhabitants of one Coast of the Bosphorus, which makes a Part of Mount Caucasus. The Passage is: Μετὰ δὲ τὴν Σινδικὴν, &c. p. 758. A. 759. A. Edit. Amstel.Jacobus Thomasius, who refers us to this Passage in his Dissertation intitled, Historia de latrocinio gentis in gentem, § 22. criticises our Author, as if thro’ mistake he had understood all the Booty those People made, whereas the Geographer speaks only of the Persons they took. But he is mistaken himself, in having blindly followed the Latin Version, which without Reason so determines the Generality of the Sense, apparently from the ἀνδραποδισμον̂ χάριν which goes before. The same Author also without ground confines the Passage in Question to the Heniochi, which relates equally to both the other People; as will appear upon examining the Sequel of the Discourse. In another Dissertation, De moralitate latrocinii gentis in gentem, §9.he quotes Aristotle, who ranks the Heniochi amongst the Anthropophagi [or Maneaters] and there upon seems to question, what Strabo says of them in the Passage here cited. But the one does not hinder the other from being true.

[6. ]Ver. 85. & seqq.

[7. ]Semper enim ex eo quod maximas partes continet, &c. Cap. XXX.

[8. ]This is in a Fragment of his third Book, De Republica, which St. Austin has preserved in his De Civitat. Dei, Lib. II. Cap. XXI. I shall give the Whole Passage, because it is fine: Respublica res est Populi, quum bene ac juste geritur, sive ab uno Rege, sive a paucis Optimatibus, sive ab universo Populo. Quum vero injustus est Rex, quem Tyrannum voco; aut injusti Optimates, quorum consensus Factio est; aut injustus ipse Populus, cui nomen usitatum nullum reperio, nisi ut etiam ipsum Tyrannum adpellem: Non jam vitiosa, sed omnino nulla, Respublica est; quoniam non est res Populi, quum Tyrannus eam, Factiove, capessat: Nec ipse Populus jam Populus est, si sit injustus; quoniam non est multitudo Juris consensu, & utilitatis communione, sociata: “A State is really a State, that is to say, the Government of the Affairs of the People, when they are administred well, and according to the Rules of Justice, either by a King or the principal Persons of the State, or the Whole Body of the People. But when the King is unjust, which I call a Tyrant; or the principal Persons are unjust, and by agreeing together, form a Faction; or even the Body of the People are unjust, an Abuse, for which there is no Name that I know of, unless it may be called a Tyranny of the People: This, cannot properly be called a bad Government but absolutely none at all; since it is a Tyrant or Faction, that reigns and administers his, or their Affairs, and not those of the People. The People themselves are no more a Body of People, from the Moment they are unjust; because they are no longer a Multitude of People united together by a Community of Rights and Interests.” It appears from hence that Cicero speaks of an Abuse of the Supreme Authority, carried so far by those, who have that Authority in their Hands, as to be an entire Subversion of lawful Government; in which Case he might well say, that the State, or Government was destroyed; tho’ indeed, with regard to Strangers, it remains still a State, but an ill governed one.

[9. ]Nec ideo tamen vel ipsum, &c. De Civit. Dei, Lib. XIX. Cap. XXIV.

[10. ]Orat. Borysthenit. & De Lege.

[11. ]This Cicero says of the Condition in which the publick Affairs were in his Time: Nec Leges ullae sunt, nec judicia, nec omnino simulacrum aliquod ac vestigium civitatis, Lib. X. Ad Famil. Epist. I. Grotius.

[12. ]That Orator does not speak of a Sovereign, who reigns tyrannically, but of a Man, who has possessed himself of the Government of a free State; for the Greeks gave the Name of Tyrant to such Usurpers, whatever Moderation and Equity they administred the publick Affairs with. Aristides to induce the Rhodians to Unity and Concord, shews, that it is better for a Republick to lose its Liberty in that manner, than to be torn in pieces by Sedition and Civil Wars, and he alledges this amongst other Reasons, that some Legislators themselves have believed it necessary to make Laws under a Tyrant or an Usurper, whereas Nobody ever imagined, that a Government could ever be formed or subsist during a Sedition. Orat. De Concordia, ad Rhodios, Vol. II. p. 385. A. B. Edit. Paul. Steph.

[13. ]Politic. Lib. V. Cap. IX. p. 401. Vol. II. Edit. Paris.

[14. ]See Paragraph I. of this Chapter, Note 3.

[15. ]Latrocinia nullam habent infamiam, &c. De Bell. Gall. Lib. VI. Chap. XXIII.

[16. ]Nam quicquid inter Peucinos, &c. German. Cap. LXIV. Num. 2.

[17. ]Iisdem temporibus, &c. Annal. Lib. XII. Cap. XXVII. Num. 3.

[18. ]Nam populus Oëensis, &c. Ibid. Hist. Lib. IV. Cap. L. Num. 6.

[19. ]A Triumph was decreed to Augustus Caesar, as we learn from Appianus Alexandrinus, Bell. Illyric. p. 1208. Edit. Amstel. (766. Edit. H. Steph.) and not to Cneus Fulvius Centumalus, as Gronovius says here, who confounds the Times and Persons. For that Consul’s Expedition was followed by a Peace.

[20. ]He triumphed on their account, but at the same Time hetriumphed for having conquered Mithridates. See Appianus Alexandrinus, De Bell. Mithridatic. p. 416, 417. Edit. Amstel. (252. Edit. H. Steph.) Pliny has preserved the Inscription of this Triumph, at the Head of which are these Words: Quum oram maritimam a praedonibus liberasset, &c. Hist. Natur. Lib. VII. Cap. XXVI. Pompey was not the only Person who had the Honour of a Triumph, for having conquered Pirates. See the Note of the learned Gronovius.

[1 ]It is said in the Book of Judges, Chap. XI. Ver. 3. that Jephtha went to settle in the Land of Tob, and there were gathered vain Men to Jephtha, and went out with him. This was against the Enemies of Israel, that harassed and pillaged them often. See Mr. Le Clerc’s Commentary upon the Place. So that he only rendered like for like.

[2. ]He became a famous King of Parthia from being a Captain of Robbers: Erat eo tempore Arsaces, vir, sicut incertae originis, ita virtutis expertae, &c.Justin, Lib. XLI. Cap. IV. Num. 6, 7.

[3. ]Ceterum Lusitanos Viriatuserexit, &c.Florus, Lib. II. Cap. XVII. Num. 15.

[4. ]The antient Mamertines are an Example of this Kind. See Diodorus Siculus, in Fragment. (Lib. XXI. XXII.) Grotius.

[5. ]Hoc malum si in tantum, &c. De Civit. Dei, Lib. IV. Cap. IV.

[a ]B. 1. ch. 3.

[b ]Cajet. 2. 2 Qu. 40 Art. 1.

[1 ]As the Duke of Lorrain in Crantzies, Saxon. XII. 13. The City of Straelsund declared War against the Dukes of Pomerania, its Princes; the same Crantzius, Vandal. XIV. 35. Grotius.

[1 ]Josephus, the Jewish Historian, says, that it is unjust to make War without having first declared it. Antiq. Jud. Lib. XV. See Examples of Declarations of War, in Crantzius, Saxonic. Lib. XI. and in the Life of Basilides, Great Duke of Muscovy, by Oderborn, Lib. III. Nicetas, Lib. III. (Histor. Manuel. Comnen. Cap. VI.) blames the Sultan Chliziastlan; and elsewhere, Lib. V. (Cap. IV.) Neeman, a Prince of the Servians, for having acted in a different manner. Grotius.

The promulgata praelia is not Ennius’s but Cicero’ s, who uses this Expression of his own Head in citing some Words from that antient Poet: Etenim ut ait ingeniosus Poeta & Auctor valde bonus praeliis promulgatis, Pellitur e Medio non solum ista vestra verbosa simulatio prudentiae, sed etiam ipsa illa domina rerumSapientia :Vi geritur Res. Orat. pro Muraena. Cap. XIV. See Aulus Gellius, Lib. XX. Cap. IX. where he recites the Verses, from whence this is taken. Our Author fell into this small Mistake from having followed Albericus Gentilis, De Jure Belli, Lib. II. Cap. I. p. 217. In the Passage of Josephus, it is Herod who speaks and gives Athenion to understand, that in attacking him by Surprize, and without having declared War, he had committed a second Injustice, Cap. VIII. p. 522. D.

[2. ]Ac belli quidem aequitas, &c. De Offic. Lib. I. Cap. XI. Justum Bellumest, quod, &c. (Origin. Lib. XVIII. Cap. I.) Grotius.

I do not find that Isidore gives this Definition as from an antient Author: Grotius cites the Passage here, as he found it recited in the Canon Law, Caus. XXIII. Quaest. II. Can. I. But according to Dennis Godefroy’s Edition, which I use, it is: Justum Bellum est, quod ex praedicto geritur, de rebus repetitis, aut propuls and orumhostium causa. The Corrector of the Roman Edition maintains also, that this is the better reading, as it is confirmed by all the Manuscripts, as well as Editions. The Sense is much the same, according to our Author, who understands by edictum the same Thing as is meant by ex praedicto; which appears, from what he says a little lower, §7. Num. 4. So that the Definition, according to him, is defective, in not expressing the other Condition, or publick Deliberation, which the Declaration however supposes. Albericus Gentilis, De Jure Belli, Lib. II. Cap. I. p. 216, 217. pretends that ex edicto should be read; founding his Opinion solely upon the Passage in Livy, which will be recited in the following Note.

[3. ]Bellum palam & ex edicto gerere, says our Author. He does not direct us to the Passage, where these Words are, tho’ he might easily have done it after Albericus Gentilis, (ubi supra) from whom he has taken them. It is in the first Book, where the Historian, speaking of the War of the Fidenates and Vejentes against the Romans, says, that Metius Fuffetius, Dictator of Alba, had secretly encouraged them to undertake it, upon promise to assist them by betraying the Romans:Quiasuae civitati animorum. &c. Cap. XXVII. Num. 2.

[4. ]Hic exercitus [Acarnanum] primo, &c. Lib. XXXI. Cap. XIV. Num 10.

[1 ]Lib. I. Cap. LXXXVI. Edit. Oxon. The same Author makes the Plataean Deputy say, that by the Laws, of all Nations, it was allowable for a People to defend themselves against an Invader, Lib. III. Cap. LVI. For this Reason Flaminius, as Diodorus Siculus tells us, called the Gods and Men to witness, that he was not the Aggressor, but King Philip. Excerpt. Peiresc. p. 297. See Mariana XIX. 13. and Dexippus, in Excerpt. Legat.Grotius.

The Passages, quoted in this Note, speak only of the Justice of Defence against an unjust Aggressor; but have nothing in them that relates to Declarations of War.

[2. ]It is where he complains of Aeneas and the Trojans, for having plundered his Country without any Reason, and without having declared War. Antiq. Roman. Lib. I. Cap. LVIII. p. 46. Edit. Oxon. (47. Edit. Sylb.)

[3. ]It is in his Tacticks or Treatise upon the manner of drawing up an Army in order of Battle, a Work believed to be done by an Author more antient than him, whose Var. Histor. and Histor. Animal. are known to all the World. Obrecht directs us to the Place of that Work, where this Passage is found, and that of Plato quoted there. But he should have added, that neither the one nor the other are to the Purpose. Aelian to prove the Utility of the military Art, says, that all Men ought to provide for War, for the Reason contained in the Passage of Plato, which, as we shall see in the following Note, signifies something different from what our Author finds in it. The Words of him who cites the antient Philosopher are: Ὅτι μέν τοι τὸ μάθημα, &c. Cap. I. p. 12. Edit. Arcer. 1618.

[4. ]The Cretan Interlocutor says, that even in Time of Peace, it is necessary to think of War; because properly speaking, there is no true Peace; all States, being naturally at War with each other, a War that is not declared by Heralds; that is to say, they either have a secret Enmity, or a Disposition to make implacable War against one another; according to the most common and known Signification of the Epithet, ἀκήρυκτος when joined with the Word War. De Legib. Lib. I. p. 626. A. Vol. II. Edit. H. Steph. So that there is nothing in the Passage which tends to establish, that when we act only on the defensive, the Declaration of War is unnecessary.

[5. ]Orat. ad Nicomed.

[6. ]Et nondum aut indicto bello, &c. Lib. XXXV. Cap. LI. Num. 2, 3.

[7. ]Provided we are well assured that he who detains our Right, will not restore it. Mr. Carmichael, Professor at Glasgow, adds another Exception, which is, when we cannot retake our own without hurting others, who keep the Thing taken away or detained unjustly, in which Case he is of Opinion, that a conditional Declaration ought to precede. Not. inPufendorf, De Offic. Hom. & Civ. Lib. II. Cap. XVI. § 7. But if those People know or can easily know, that he, who gave them the Things to keep, possesses it unjustly; they are Accomplices in the Injustice, and there for edeserve to be treated with no greater Tenderness, than the principal Detainer. And if they are actually ignorant, it is the same in this Case, as when after having declared War in form, we commit Hostilities, which we foresee must hurt the innocent, as well as guilty, Subjects of the Enemy. This is a Misfortune to which they are exposed, by an inevitable Consequence of the Constitution of civil Societies: We are not therefore obliged to abandon, or suspend, the pursuit of our Effects or Rights, especially, when a favourable Occasion offers, which we are afraid to miss.

[a ]B. 2. ch. 7. §2. B. 3. ch. 1. §2. n. 3. and ch. 2. § 2.

[b ]B. 2. ch. 21. §2, &c.

[c ]Mariana, Hist. Hisp. xxvii. 13.

[8. ]It is not only honest and commendable; we are even obliged to act so by the Law of Nature, as often as we can without Prejudice to ourselves. We do not indeed injure him, properly speaking, who, as far as in him lies, has given us just Cause to take up Arms against him. But the Love of Peace, Humanity, and Compassion for a great Number of innocent Persons, who are always involved in the Calamities of War, undoubtedly require, that all Means should be used to avoid it, and that we should retain as long as possible the Hope of bringing the Aggressors to right Reason.

[d ]B. 2. ch. 23. §7.

[9. ]This is a Verse of Seneca, Agamemn. Ver. 153.

[10. ]The Jewish Historian, speaking of the War of the other Tribes against the Tribe of Benjamin, says, that as soon as they were assembled at Silo, after having known what had been done to the Levite’s Concubine, they would have taken up Arms against the Inhabitants of Gaba; but the Council of the principal Persons of the Nation restrained them by representing, that they ought not to proceed so soon to a War with their Countrymen, or before they had proposed their Grievances to them by a friendly Conference; and that they were obliged the more to use such Delay, as the Law did not permit their marching with an Army, even against Strangers, whatever Wrong they might think they had received, without first sending Embassadors to endeavour to obtain a reasonable Satisfaction from them. Antiq. Judg. Lib. V. Cap. II. Grotius. The Law of Deuteronomy did not extend to all People, against whom the Israelites might make War. See Mr. Le Clerc’s Comment. upon it.

[e ]Deut. xx. 10.

[11. ]In the Original it is cum jure Gentium. But our Author intended no doubt to say, Jure Naturae or Jure Gentium communi; taking thus the Law of Nations in the same Sense as the Roman Civilians, and not as his arbitrary Law of Nations, of which he does not yet speak.

[12. ]Cyrop. Lib. II. Cap. IV. § 19. Edit. Oxon. in fin. Lib.

[13. ]But if one of the Enemies has attacked the other without declaring War, and has reduced him to the Necessity of defending himself without giving him Time to make a Declaration in form, shall not this War have the same Effect, as if it had been declared on one Side? And wherefore should the Attacked, who could not declare War, suffer, because the Aggressor, who could, did not declare it? Besides, we shall shew in the following Chapter, that the Effects meant by our Author, which are Impunity, and the Right of appropriating to ourselves what we take from the Enemy; that these Effects, I say, do not arise from the Declaration of War, nor from a pretended arbitrary Law of Nations, and that they are not particular to Wars declared in form. As to our Author’s Division of Declarations of War into conditional and pure or simple; some Writers pretend, that it has no solid Foundation, and that every Declaration of War, in what so ever Manner it be made, is conditional, either expressly or tacitly. For, say they, we ought always to be disposed to accept a reasonable Satisfaction, and the Moment an Enemy offers that, we cannot continue the War against him without great Injustice, even tho’ the Declaration, which preceded it, was pure and simple. But, besides, that our Author here treats of the Law of Nations, which according to him, often imports no more than Impunity; the Manner, in which he explains his Division, supposes that he, against whom War is declared purely and simply, has already sufficiently shewn, that he had no Design to spare us the Necessity of taking up Arms against him. So far therefore the Declaration of War may well be pure and simple, without Prejudice to the Dispositions, wherein we ought always to be, with regard to the future, if the Enemy will hearken to Reason; which relates to the Conclusion, rather than Commencement of a War; to the latter of which the Distinction of pure and conditional Declarations belongs.

[1 ]See Paruta, De Bello Cyprio, Lib. I. Peter Bizar. Lib. XXIII. where he speaks of the Turks:Reinking. Lib. II. Class. III. Cap. IV. Grotius.

[2. ][Res rapuisse licebit] Clarigationem exercere, hoc est per Feciales bellaindicere. Nam veteres laedere res, RAPERE dicebant, etiamsi Rapinae nullum crimen existeret: Similiter satis facere, res reddere dicebant. In Aeneid. X. Ver. 14.

[3. ]This will be given in Note 8. upon this Paragraph.

[a ]B. 2. ch. 21. §4.

[4. ]Clarigatio. Et Legati, quum ad hostes clarigatumque mitterentur, id est, res raptas claré repetitum, unus utique Verbenarius vocabatur. Hist. Nat. Lib. XXII. Cap. II. See also Servius in Aeneid. XI. (Ver. 53.) and X. (Ver. 14.) The Naturalist in the Passage here cited, says, that one of the Heralds, who went to make the Summons, was called Verbenarius, because he carried Vervain to the Enemy: As is said elsewhere: Nostri Verbenacam vocant: Haec est quam Legatos ferre ad hostes indicavimus, Lib. XXV. Cap. IX. Grotius.

[5. ]Eam se contumeliam injuriamque, ni sibi ab iis qui fecerint, dematur, ipsos omni vi depulsuros esse, Lib. VIII. Cap. XXIII. Num. 7.

[6. ]Praemittit [Germanicus] literas ad Caecinam, venire se valida manu, ac ni supplicium in malos praesumant, usurum promiscuâ caede. Annal. Lib. I. Cap. XLVIII. Num. 1. He speaks there of the Revolt of Legions: So that it was a threatning of Chastisement, and not a Declaration of War.

[7. ]

• Ἐλθὼν δ’ ὑπέρ τ’ Ἄσωπον, &c.

Supplic. Ver. 383. & seqq. There is a Declaration of War of the like Kind in the Battle of the Frogs and Mice, ascribed to Homer, (Batrachomyomach. Ver. 135. & seqq.) In Plautus’s Amphitryon we see, that General sends first the principal Officers of his Army to the Telebaeans, to tell them, that if without coming to Blows, they would agree to restore what they had taken from the Thebans, and deliver up the Authors of those Violences, he would return with his Troops and leave them in Peace; and if not, he would immediately lay Siege to their City, and push it on with the utmost Vigour:

• Principio ut illo advenimus, &c.

(Act I. Scen. I. Ver. 48. & seqq.) See also Cromer, Derebus Polon. Lib. XXI. Grotius.

In the Passage of Polybius, to which the learned Gronovius refers us here, I cannot tell whether any Thing is meant, but the Right of Reprisals, upon which our Author has cited the same Historian in the preceding Chapter, § 5. Note 5. The Eleutherneans, suspecting that Timarchus, one of their Citizens, had been assassinated by the Order of Polemocles, Admiral of Rhodes, gave Permission at first to use Reprisals against the Rhodians, and afterwards declared War against them, Lib. IV. Cap. LIII. In my Opinion, far from departing here from the ordinary Signification of the Word Ῥύσια, it is very natural to apply it in this Passage. As to condicere, see the form of Declarations of War in the following Note.

[b ]See the Passage cited in §5. n. 2.

[c ]See an Example in Bembus, l. 3.

[8. ]Si non deduntur, quos exposcit [Legatus] diebus tribus & triginta, (tot enim solennes sunt) peractis, bellum ita indicit: Audi, Jupiter & tu Juno, Quirine, Diique omnes coelestes, vosque terrestres, vosque inferni, audite. Ego vos testor, populum illum, (quicumque est nominat) injustum esse, neque jus persolvere. Sed de istis rebus in patria majores natu consulemus, quopactojus nostrum adipiscamur. Cum his nuntius Roman ad consulendum redit. Confestim Rex, his fermé verbis Patres consulebat: Quarum rerum, litium, causaram, condixit pater patratus Populi Romani Quiritium patri patrato priscorum Latinorum, hominibusque priscis Latinis, quas res dari, fieri, solvi, oportuit, quas res nec dederunt, nec fecerunt, nec solverunt, dic, inquit ei quem primum sententiam rogabat, quid censes. Tum ille: Puro pioque duello quaerendas censeo; itaque consentio, consciscoque. Inde ordine alii rogabantur: Quandoque pars major eorum, qui aderant, in eamdem sententiam ibat, bellum erat consensu fieri solitum; ut Fecialis hastam ferratum, aut sanguineam praeustam, ad fines eorum ferret, & non minus tribus, puberibus praesentibus diceret: Quod populi priscorum Latinorum, hominesque prisci Latini, adversus populum Romanum Quiritium fecerunt, deliquerunt, quod Populus Romanus Quiritium bellum cum priscis Latinis jussit esse, Senatusque Populi Romani Quiritium censuit, consensit, conscivit, ut bellum cum priscis Latinis fieret; ob eam rem ego populusque Romanus populis priscorum Latinorum, hominibusque priscis Latinis, bellum indico facioque. Id ubi dixisset hastam in fines eorum emittebat.Liv. Lib. I. Cap. XXXII. Num. 9. 14. where the form of declaring War by the Romans is very curiously related at large. The late Mr. James Gronovius, in a long Note upon this Passage, has pretended, that our Author was deceived in believing after Turnebius that the Word Condixit, used here in the Deliberation upon the War, signifies the preceding Summons, or the conditional Declaration of War. But I confess, the Reasons of that learned Man do not appear sufficiently strong to make me subscribe to his Criticism. He says that neither in Livy nor elsewhere is it found, that the King at Arms (Pater patratus) was employed to make that Summons or Demand; that it was always attributed to the Heralds, without mentioning their Chief, and that Livy in Chapter XXIV. of the same Book says very expressly, that the Pater patratus only took the Oath, and recited the Conditions in Treaties of Alliance. But it suffices, that this Chief did not go alone, and that he was attended by some other Heralds, in order to his being comprised under the general Name of Feciales: Now this is what Servius says in so many Words, upon Ver. 14. of B. X. of the Aeneid, tho’ he speaks elsewhere of the Feciales in general, without mentioning the Pater patratus. Unless therefore it be clearly proved, that in this Passage of Livy, the Summons (clarigatio) is not meant, his Authority is of Use to explain, what other Authors and himself have said in a general manner, in Places, where the Question was not to describe more particularly a Thing, which they supposed sufficiently known. The Grammarian Servius, in one and the same Passage, (one Part of which I shall cite presently, and the other in Note 11.) after having said, that the Chief of the Heralds was the Person who declared War, ascribes that Declaration a little lower to the Feciales in general. As to the twenty fourth Chapter of Livy, I find there indeed, that the Pater patratus is employed to treat of Alliances, but I find nothing which insinuates that this was his sole Business. And on the contrary, the Passages, cited also from Servius, say, that the Heralds, and their Chief without Distinction, made Alliances and declared War: Atqui Feciales & Pater patratus, per quos bella vel Foedera confirmabantur, numquam utebantur vestibus lineis—Qua [verbena] coronabantur Feciales & Paterpatratus foedera facturi, vel bella indicturi. In Aeneid. XII. 120. Thus the order of the Things are changed, that we may not think the one regards the Feciales, and the other the Pater patratus. But here is an express Passage of the same Grammarian: Quum enim volebant bellum indicere, Paterpatratus, hocest, princeps Fecialium, proficiscebatur ad hostium fines, & praefatus quaedam solennia, clara voce dicebat, se bellum indicere propter certas causas: Aut quia Socios laeserant, aut quia nec abrepta animalia, nec obnoxios, redderent. Et haec Clarigatio dicebatur a claritate vocis. In Aeneid. IX. 53. He will have it moreover that the Word Condicere is only said of Things in regard to which the two Parties agree. But Festus tells us, that it signified in general to declare and make known: Condicereest dicendo enuntiare. In short the whole Connection of the Discourse, and even the Terms of the Deliberation upon the War, are repugnant to what is meant here by condixit, a Treaty lately made between the Latins, and the Romans, as he imagines who criticises our Author in this Place. The Historian describes in general the manner in which Satisfaction was demanded, and the War afterwards declared. Whence it is that after the refusal of restoring what was due, mention is made of a People, whosoever they were: Populum illum (quicumque est nominat). The Latins are indeed named after: But that is because the Terms of Forms require their being determined to some particular People. And in the Form in Question, the first Words, Quarum rerum, litium, causarum plainly denote every Kind of Complaint in general, and all Affairs, about which they might have any Controversy with each other: So that they do not seem to me compatible with the Determination of the Sense of condixit, to the Ceremony of concluding a Treaty. But farther: The Historian says clearly, that the Reason, why Satisfaction was demanded of the Latins was their having made Incursions into the Territories of the Romans: Et quum incursionem in agrum Romanum fecissent, repetentibus res Romanis superbe responsum reddunt, Num. 3. He was not therefore speaking of the Violation of a Treaty: Of which it is probable he would not have omitted to say something. I insert this Note, as I composed it several Years ago at Lausane. I have since seen with Pleasure, that Mr. Jens in a good Dissertation, De Fecialibus Populi Romani, (which is Part of his Ferculum Literarium published 1717.) is exactly of the same Opinion with me, and tacitly refutes the late Mr. Gronovius almost by the same Reasons. It may be seen, by what there is of more or less in the one and the other, and by the different manner in which our Arguments are turned; that as that learned Gentleman could not take from me, I have not robbed him. All the rest of his Dissertation is well worth reading.

[9. ]Consultique Feciales ab Consule Sulpicio, &c. Livy, Lib. XXXI. Cap. VIII. Num. 3.

[10. ]Consul deinde Manius Acilius, &c. Idem, Lib. XXXVI. Cap. III. Num. 9, 11.

[11. ]Denique, quum Pyrrhi temporibus, &c. In Aeneid. IX. 53.

[12. ]See Thucydides, Lib. I. Cap. XXIX. Edit. Oxon.

[1 ]It was a Staff, or Kind of Scepter, wrapped up in a Figure of Serpents twisted together. Pliny says, that the Use of this Figure came from a Sort of Eggs, formed by a Heap of Serpents twined and glued in a Manner to each other; so that this Staff was intended to be an Emblem of Peace between two Enemies, who reciprocally send Heralds with the Caduceus in their Hands, Angues innumeri, aestate convoluti, &c. Hist. Nat. Lib. XXIX. Cap. III. See also Servius upon the Aeneid. Lib. IV. (ver. 242.) and Lib. VIII. (ver. 138.) Grotius.

It appears by the Passage of Pliny, which our Author only quotes, and still better by those of Servius, to which he refers us; that the Caduceus was a Token of Peace rather than War, and therefore, that the proper Design of its Institution was not to declare War. The Commentator upon Virgil says expressly, that those who carried the Caduceus were Embassadors of Peace, as the Feciales were employed in declaring War. Unde, secundumLivium, legati pacis Caduceatores dicuntur. Sicut enim per Feciales, a foedere [dictos should be added here] bella indicebantur; ita pax per Caduceatores fiebat. In Aeneid. IV. 242. See also Isidorus, Orig. Lib. VIII. Cap. XI. Col. 1027. Edit. Gothofr.Suidas calls the Caduceus Σύνθημα ϕιλίας, a Symbol of Friendship, (voce Κηρύκειον) which he has taken from Polybius, Hist. Lib. III. Cap. LII. And Aulus Gellius informs us, upon the Authority of some antient Histories, that the General Quintus Fabius, intending to give the Carthaginians their Choice of War or Peace, sent them from the Roman People, a Pike and a Caduceus, as two Signs, the one of War and the other of Peace. Quod Q. Fabius, Imperator Romanus, dedit ad Carthaginientes e pistolam, ubi scriptum fuit Populum Romanum misisse ad eos hastam & caduceum, signa duo belli aut pacis, &c. Noct. Attic. Lib. X. Cap. XXVII. But I find in Thucydides, two Passages which prove clearly, that the Use of the Caduceus, supposed the War already declared. The first is in the Place where he relates the Sea-Fight between the Corinthians, and the People of Corfu. The latter being victorious, the others thought of retiring, but as they apprehended that the Athenians, who were come to the Aid of the People of Corfu, with a considerable Reinforcement, would look upon the Fight as a Rupture of the Alliance, and consequently, upon them as Enemies; they sent some Persons to them in a Skiff, without the Caduceus, to sound their Sentiments, says the Historian; which manifestly implies, they intended to shew on their Side, that they did not mistrust them, nor consider them as declared Enemies. Lib. I. Cap. LIII. Edit. Oxon. The other Passage is at the End of the same Book, where the Historian says, that notwithstanding all the Differences which he had related, the People of Peloponnesus had not discontinued their Commerce with each other, and went freely into each other’s Country, without the Caduceus, tho’ not without some Mistrust. Cap. CXLV. The Historian says also, in the Beginning of the following Book that after the Peloponnesian War broke out, they had no longer any Communication without the Caduceus. See the Greek Scholiast upon the two last Passages.

[2. ]See the Passages of Pliny, which are cited above, § 7. Note 2 and Festus, on the Word Sagmina.Livy, however, mentions the Use of this Herb only in the Ceremony of Treaties of Alliance, for which the chief Herald at Arms was sent. Lib. I. Cap. XXIV. Num. 4, 5. and Lib. XXX. Cap. XLIII. Num. 9. He says not a Word of it in the Place where he relates the Manner of demanding Satisfaction, and declaring War, tho’ every Thing there seems well circumstantiated. Might not the Circumstances of those two Ceremonies have been confounded? We may be induced to believe so, from a Passage in Varro, where that learned Roman says, that Vervein was to the Romans what the Caduceus was amongst the Greeks; namely, a Token of Peace; pacis signumVarropronuntiat. De Vita Populi Romani. Lib. II. Verbenatus ferebat verbenam; id erat Caduceus, pacis signum, nam Mercurii virgam possumus aestimare. ApudNon. Marcell. p. 528. Edit. Paris. 1614.

[3. ]That Javelin was burnt at the End, as Livy says, who puts also the Alternative of a Javelin, headed with Iron. See the Passage cited in Note 9. upon the preceding Paragraph.

[4. ]This is what Livy tells us the College of Heralds were consulted upon, in the War against Antiochus and the Aetolians. Et num prius societas eis [Aetolis] & amicitia renuntianda esset, quam bellum indicendum. Lib. XXXVI. Cap. III. Num. 10.

[5. ]See Servius upon the ninth Book of the Aeneid, (ver. 53.) and Ammianus Marcellinus, Lib. XIX. (Cap. II. p. 229. Edit. Gron. Vales.) with the Note of the learned Lindenbrog upon that Passage. Grotius.

Our Author supposes in this Place, that the Heralds threw a Javelin twice into the Enemy’s Lands, Hastae missio iterum. But he was mistaken, through his misunderstanding the Sequel of the Discourse, in the Passage of Servius which he cites; as it would be easy for me to prove.

[6. ]It is in the Place where, to retort the Reproach of Novelty thrown on the Christians, he shews that the Romans themselves had in many Things abandoned the Customs of their Ancestors. Amongst others he gives for an Example, that the College of the Feciales, or Heralds at Arms, were no longer consulted in Regard to War, nor sent to demand Satisfaction in Form, before the Declaration of War; and that the Time for beginning a War was no longer signified by a Flag displayed upon the Capitol. Quam paratis bella, signum monstratis ex Arce? Aut Fecialia jura tractatis? Per clarigationem repetitus res raptas? Adversus Gentes, Lib. II. p. 91. Edit. Ludg. Batav. 1651.

[7. ]I shall set down the Passage wherein he informs us, that in his Time the Feciales were still employed in making publick Treaties, but not in declaring War. Feciales, quod fidei publicae inter Populos praeerat: Nam per hos fiebat, ut justum conciperetur bellum, (& inde desitum) & ut foedere fides pacis constitueretur. Ex his mittebant, antequam conciperetur, qui res repeterent: & per hos etiam nunc sit foedus, &c. De Ling. Lat. Lib. IV. p. 23. Edit. H. Steph. As for these Words, & inde desitum, I am inclined to believe that the Author wrote sed inde desitum. The Change of sed into & might very easily happen. Mr. Jens, in his Dissertation cited above, p. 64. suspects that there is another Word corrupted in this Place; conciperetur for conscisceretur.

[8. ]It is from AppianusAlexandrinus, that our Author has taken this Circumstance. De bell. Punic. p. 69. Edit. Amstel. (43. H. Steph.)

[9. ]Our Author had probably in his Eye the long Discourse made by Maecenas to Augustus, when the latter asked his Advice with Regard to his Design of abdicating the Government of the Republick. But I find nothing, either in this Discourse or that of Agrippa, that relates to the Forms used in Declarations of War. The Origin of the false Citation is this, Albericus Gentilis, De Jure Belli, Lib. II. Cap. I. in fin. p. 218. remarks, that Maecenas, (apud Dion. Lib. LII.) seems to say, that only Democratical States observe the Formalities with which Declarations of War are attended. What gave the Italian Civilian Occasion to form this Conjecture, was the Passage where Maecenas says, that in advising Augustus to retain the Government of the State, he does not pretend to persuade him to act as a Tyrant, but only to regulate, in Concert with the chief Men of Rome, all the Affairs of the State, in a just Manner, and conformably to the Good of the Publick. He represents at the same Time, that the State would thus be much better governed, and in Consequence more happy, than if the supreme Authority were put into the Hands of the People. When it shall be necessary (says he, amongst other Things) to undertake a War, you will do it secretly, and by making good Use of favourable Occasions. p. 542. E. Edit. H. Stephens. The War here meant is not one made rashly, and without being declared; but Augustus’s Courtier, as appears from the Sequel of his Discourse, opposes Wars undertaken wisely to dangerous Wars, in which the Romans had been engaged by the tumultuous Deliberations of the People; Secresy not being observed in them, and the ambitious great Men finding Means to win the Populace, and to make them consent to take Arms under their Conduct. This is the true Sense of the Passage: Our Author has followed, without Hesitation, that which Gentilis spoke with some Doubt.

[1 ]Diffidato Principe, diffidati ejus adherentes. See Baldus, Ad Leg. II. Code, De Servis, Num. 70. For in their barbarous Phrase Diffidare signifies to declare War.

[2. ]Feciales responderunt. —Aetolos ultro sibi, &c.Livy, Lib. XXXVI. Cap. III. Num. 13.

[1 ]See what is said above, B. I. Chap. III. Num. 4.

[2. ]Mr. Buddeus, in his Dissertation intitled Jurisprudentiae Historicae Specimen. § 110. subscribes here to our Author’s Opinion, which is also that of the Generality, even of his Commentators, except Obrecht. The latter, speaking of the Case in Question, upon the Passage cited in the preceding Note, which however relates to another Thing, contents himself with referring to Chap. XXXV. of B. I. of Caesar’s own Commentary upon the War in Gaul.Caesar there, alledging his Reasons for undertaking the War with Ariovistus, says, amongst other Things, that in the Consulship of Messala and Piso, the Senate had decreed, that whoever should be Proconsul of Gaul, should defend the Eduans, and the other Friends of the Roman People, as much as he could, without Prejudice to the Welfare of the Republick. Quoniam M. Messala M. Pisone, Coss. &c.Boecler, in his Dissertation De Actis Civitatis, Vol. I. p. 887. approves this Reason, and confirms it by the Example of Cicero, who, when Proconsul of Cilicia, believed himself authorized to act something like it, by Vertue of a like Decree of the Senate, as appears from what he says himself, Lib. XV. Epist. Ad Familiar. II. Florus also speaks of Caesar’s Expedition against Ariovistus, as of a very just War. Sed prima contra Germanos illius pugna, justissimis quidem ex causis: Haedui enim de incursionibus eorum querebantur. Quae Ariovisti superbia? &c. Lib. III. Cap. X. Num. 10. And Dion Cassius makes Caesar say, that the extraordinary Command decreed him by the Senate and People of Rome, included a Permission to undertake War against whomsoever he should think fit. Lib. XXXVIII. p. 96. B. Edit. H. Steph. So that the Question only is to know whether Caesar had good Reasons for making Use of this Permission. It is not denied but that this Conqueror might have been prompted by his Ambition, which made him seek and embrace eagerly all Occasions for taking up Arms: But as the Thing itself, and not the secret Motives, is the Matter in Question, it suffices that Ariovistus had given him just Occasion to attack him. Now this is what the late Mr. Cellarius proves very well in a good Dissertation, De C. Julii Caesaris adversus Ariovistum Regem, aliosque Germanos Bello; which is the sixth of the Collection, published MDCCXII. Ariovistus, says he, had no Right to appropriate a Part of Gaul to himself: That Prince pretended in vain, that he had made himself Master of it by Right of Conquest. Admitting that he had Reason for passing the Rhine, and for joining the Sequani against the Haedui, why did he not return home after the War was ended? Why did he oppress both his conquered Enemies, and the Conquerors his Friends, by loading the former with Imposts, and depriving the latter of the best Part of their Lands. It was besides the Interest of the Romans, not only to protect the Haedui, their Allies, but also to hinder Ariovistus from continuing too long in Gaul. The Example of the Cimbri and Teutones gave them just Reason to apprehend lest the Fancy should take him to enter their Province, and settle in it.

[3. ]In the same Class may be placed the War made by Ulysses, and his Companions, against the Ciconians, who, during the Siege of Troy, had sent Aid to Priam, under the Command of Mentes. See Homer, Odyss. Lib. VIII. and the Scholia of Didymus, upon Ver. 40. Grotius.

[4. ]Patres rogationem ad Populum, &c.Livy, Lib. XXXVI. Cap. 1. Num. 5.

[5. ]Senatus consultum inde factum, &c. Idem. Lib. XLII. Cap. XXXI. Num. 1.

[a ]Alb. Gentilis, l. 2. c. 2.

[1 ]As the Romans did to Porsenna, as Plutarch relates, in the Life of Publicola. The Turks two Days before a Battle make Fires in several Places. Chalcocondylas, Lib. VII. Grotius.

See what is said, Chap. I. of this Book, § 20.

[2. ]But are People more assured of that, when a Herald comes to declare War with certain Ceremonies, than they would be when they see an Army upon their Frontiers, commanded by some principal Person of the State, and ready to enter the Country? On the contrary, might it not more easily happen, that a Person, or some few Persons, should assume the Character of Heralds, than that one Man should raise an Army by his own Authority, and march at the Head of it to the Frontiers, without the Sovereign’s Privity? And the Thing could still less be supposed to happen on both Sides. The Truth is, that the principal End of Declarations of War, or at least what occasioned the Custom of them to be established, was, as some Commentators upon our Author observe, to make known to all the World, that there was just Cause for taking up Arms, and to signify to the Enemy himself, that it had been, and still was, his Fault, if he did not avoid it. I find in Nonius Marcellus, a Passage of Varro, part of which our Author has cited elsewhere, (Preliminary Discourse, § 27.) from whence it appears clearly, that this was the Opinion of the antient Romans. They undertook no War hastily, says he, or without just Cause; from whence it was that they declared it beforehand, and established, for that Purpose, some Heralds at Arms, whom they sent, to the Number of four, to demand Satisfaction of those from whom they believed they had a Right to exact it. This is visibly the Sense of the following Words, tho’ not very correct in some Places, Itaque bella & tardé & magna licentia, [Mercier tells us it is writ so in all the Manuscripts, instead of nulla licentiâ, which was in the other Editions. Might not magna decentia be read, a Term of which that Grammarian cites an Example, p. 203. from Cicero ? for the Explanation Mercier gives us here, valde licito, appears too subtile] suscipiebant: Quód bellum nullum, nisi pium, putabant geri oportere, prius indicerent, [indicebant probably should be read, a Word, which having been changed by the Copyists into indicerent, has occasioned the foisting in quam after prius in the preceding Editions] bellum iis, a quibus injurias factas sciebant: Feciales legatos res repetitum mittebant quatuor, quos Oratores vocabant. In Voce Feciales, p. 529. Edit. Mercer.Dionysius Halicarnassensis refers also to the extreme Regard the Romans had to Justice in their Wars, the Establishment of the College of the Feciales, and in particular, the Function of declaring War, with which these were charged. Antiq. Rom. Lib. II. Cap. LXXII. The Grammarian Servius is of the same Opinion, in a Passage which our Author has quoted several Times: He says, that Ancus Marcius seeing the Roman People too fond of War, and that they often engaged in it without just Cause, borrowed from the Aequicolae the Fecial Law. Sed Ancus Marcius, quum videret Populum Romanum ardentem amore bellorum,&c. In Aeneid. X. 14. It does not appear, that in all this they thought of the Effects of which our Author speaks.

[3. ]Ad arma protinus, &c. De Ira, Lib. III. Cap. II.

[a ]Ayala, l. 1. c. 1.

[1 ]See what I shall say, Chap. VI. of this Book.

[b ]Alberic. Gentil. l. 2. c. 2.

[2. ]But see what I have already said in Note 13. upon Paragraph 6. of this Chapter.

[a ]§6.n.6.& § 8. in fin.

[1 ]This is required even by the Law of Nature itself, as often as it can be done without Prejudice to ourselves, eventho’ there is not much Hope that he, against whom War is declared, should be inclined to prevent it, by giving us Satisfaction. For we ought to neglect no Means of letting all the World know, and even the Enemy himself, that we do not take Arms to obtain or defend our just Rights, till reduced to the last Extremity, and after having tried all other Methods, and given the Enemy full Time to come to himself.