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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 IV

The Right of killing Enemies in a solemn War; and of other Hostilities committed against the Person of the Enemy.

I.The Effects of a solemn War generally explained.I. Servius upon this Verse of Virgil’s,

• 1Tum certare odiis, tum res rapuisse licebit.
• Then is your Time for Faction and Debate,
• For partial Favour, and permitted Hate.

• Dryden.

Deriving the Fecial (or Herald) Law from Ancus Marcius, who had borrowed it himself from the Aequicolae, says thus,2When Men or Cattle were taken from the Romans by any other Nations, the Pater Patratus (King at Arms) with some other Heralds, whose Office it was also to make Treaties of Alliance, went to the Borders of that Nation, and standing there, with a loud Voice proclaimed the Cause of the War; and if they would not restore the Things taken, or deliver up the Offender, (within thirty Days) he threw a Javelin into their Territories, which was the<558> Beginning of Hostilities, and then it was lawful to plunder, as is usual in War. But he had before said, that The Antients by3plundering, (Res rapere) understood the damaging what belonged to the Enemy, tho’ nothing be taken from him: And by restoring what was redemanded (Res reddere) they meant all Manner of Satisfaction for the Injury done. Whence we learn, that a War solemnly denounced between two Nations, or their Sovereigns,4 has some peculiar Effects, which do not follow from the Nature of the War itself: Which is very agreeable to what we have alreadya quoted from the Roman Lawyers.

II.The Word Lawful distinguished into what may be done with Impunity, tho’ not without a Crime, and what is not criminal, tho’ it were an Act of Virtue to let it alone; with the Addition of several Examples.II. 1. But we must observe, that this Word Licebit, will be lawful, in Virgil, is capable of a double Meaning. For sometimes that is said to be lawful which is altogether just and honest, tho’ perhaps, some other Thing may be more commendably done, as that of the Apostle St. Paul, Πάντα μοὶ ἔξεστιν, ἀλλ’ οὐ πάντα συμϕέρει, All Things (of the same Nature with those he had begun to speak of,1 and of which he was going to speak further) are lawful for me, but all Things are not expedient, 1 Cor. vi. 12. Also to marry is lawful, but to abstain from2 Marriage with apious Intent is more laudable, as St. Augustinea argues to Pollentius, out of the same Apostle. To marry a second Time is likewise lawful; but to marry but once is more laudable, as3Clemens Alexandrinus rightly decides the Question. A Christian Husband may lawfully put away a Heathen Wife, as Saint Augustineb allows (which, with what Circumstances it may be proved, is not our Business here to dispute) but yet he may keep her. Therefore he adds,4Both are equally lawful by the Rules of Justice, which our Saviour hath given us, for he hath prohibited neither of them, but both are not equally expedient. Ulpian says of a Trader, who was permitted, by the Roman Law to pour out the Wine, if the Buyer did not come to fetch it at the Time appointed,5Tho’ he may do it, yet if he did it not he is more to be commended.<559>

2. This6 Word Licere, to be lawful, may be taken for that which is not punishable by human Laws, and yet is not consistent with Piety, or the Rules of Morality. Thus, in many Countries, Fornication is allowed. Among the7Lacedemonians and Aegyptians, Theft was lawful. We read in Quintilian,8There are some Things not commendable in their own Nature, yet tolerated by the Law, as by that of the Twelve Tables, the Body of the Debtor might be divided amongst the Creditors. Indeed this Acceptation of the Word Licere, to be lawful, is not very proper,9 as Cicero observes in the fifth of his Tusculan Questions. Speaking of Cinna, On the contrary I think him miserable, not only because he did such Things, but because he so managed, that he might lawfully do them, tho’ it is not lawful for any Man to do ill, but we are misled by the Error of Speech, when we say that is lawful which is only allowed. But yet it is very common, as when the same Cicero, in Behalf of Rabirius Posthumus thus addresses the Judges,10Ye ought to consider what is suitable to be done, not what you may do by Strictness of Law, for if you regard what is strictly lawful, you may put to Death whom you please. Thus it is said,11 it is lawful for Kings to do what they please, because they are ἀνευπεύθυνοι, exempted from Punishment amongst Men, as we have saidc elsewhere. But Claudian well advises a Prince or Emperor, when he says,

• 12Nec tibi quid liceat, sed quid fecisse decebit,
• Occurrat mentemque domet respectus Honesti.
• Think not what is by strictest Law allow’d,
• But what by Truth and Conscience is avow’d.

And13Musonius blames those Princes, Μὴ τὸ, καθήκει μοι, λέγειν μεμεληκότας, ἀλλὰ τὸ ἔξεστί μοι, Who say thus I can do, rather than thus I should do.

3. And in this Sensewe find Licet, it is lawful, and Oportet, it be hoveth, often opposed to each other, as by14Seneca the Father, in his Controversies. And in Ammianus Marcellinus,15Some Things are not fit to be done, tho’ they may be lawfully done. And Pliny,16 in his Epistles, We should avoid Things that are dishonest, not because they are unlawful, but shameful. And Cicero,17 in his Oration for Balbus, Some Things are not fit to be done, tho’ lawful. And for Milo,18 he refers to natural Right what is just or innocent, and to the Laws what is permitted.<560> So Quintilian19 the Father, in one of his Declamations tells us: It is one Thing to have a regard to the Laws, and another to consider what Justice demands.

III.The Effects of a solemn War generally considered, refer to Lawfulness with Impunity.III. Therefore in this Sense it is lawful for one Enemy to hurt another, both in Person and Goods, not only for him that makes War on a just Account, and does it within those Bounds which are prescribed by the Law of Nature, as we have saida in the beginning of this Book, but on both Sides, and without Distinction; so that he cannot be punished as a Murderer, or a Thief, tho’ he be taken in another Prince’s Dominion, neither can any other make War upon him barely upon this Account. And in this Sense we are to take Sallust,1By the Laws of War all Things are lawful to the Conqueror.

IV.Why such Effects were introduced.IV. The1 Reason why this was established by Nations, is because when two States are engaged in War, it would be dangerous for any other to pronounce on the Justice of their Cause, for by that Means that State might quickly be involved in a War with other People, as the2 Inhabitants of Marseilles argued in the Cause of<561> Caesar and Pompey; that it did not belong to them, nor did their Forces permit them to determine, which had the juster Cause. Besides, even in a just War it is very hard by any outward Tokens to judge, which is the just Measure of defending ourselves, of recovering our own, or of exacting Punishment, so that it is far better to leave it to the Conscience of the Persons engaged in War to determine these Things among themselves, than to appeal to the Arbitration of others. The3Achaeans in Livy thus addressed the Senate, How should what had been acted by the Right of War, now come into Debate? Besides this Permission or Impunity, there is another Effect, viz. the Right of appropriating to ourselves what we take in a solemn War, of which we shall treat hereafter.

V.Proofs of these Effects.V. 1. But that Licence which a just War gives to an Enemy to hurt another (which we have begun to treat of) extends first to his Person, of which we have many Testimonies in approved Authors. There is a great Saying of1Euripides, which had passed into a Proverb amongst the Greeks,

• Καθαρὸς ἅπας τοὶ πολεμίους ὃς ἂν κτάνῃ.

• The Blood of an Enemy doth not stain
• The Man who kills him.

Therefore the Custom of the old Greeks was, not to wash, drink, much less to perform any Acts of a religious Worship with him that was a Homicide (that is,2had killed a Man out of War) but it was lawful to do it with him that in War had slain his Enemy; and frequently to kill is called the Right of War. And Marcellus declares in Livy,3What so ever I did among the Enemies, the Right of War defends. So does Alcon to the Saguntines in the same Author,4But I think this is rather to be endured, than that you should be all put to the Sword; and suffer your Wives and Children to be dragged about before your Faces, by the Right of War. And the same Livy in another Place, relating the general Massacre of the Astapenses,5 adds, that it was done by the Right of War. And Cicero pleads thus for Deiotarus,6But how could he be suspected as your Enemy, who cannot but remember, that when you might have adjudged him to die by the Law of Arms, you made both him and his Son Kings. And for Marcellus,7For when by the Right of that Victory we might have been all put to Death, we were preserved by your Clemency. And Caesar8 tells the Haedui, That he had out of his Mercy preserved them, whom by the Right of War he might have slain. And Josephus9 in his Jewish War, καλὸν ἐν πολέμῳ θνήσκειν, ἀλλὰ πολέμου νόμῳ, τον̂τ’ ῎στιν ὑπὸτω̂ν κρατούντων, calls it honourable to die in War, but by the Right of War, that is by the Hands of the Conqueror. And so Statius,10 <562>

• Non querimur caesos, haec bellica jura, vicésque
• Armorum ——
• We grieve not for our Men, who bravely dy’d,
• This is the Right of War, we’re satisfy’d.

2. Yet we must observe, that when these Authors write thus, they do not mean a Permission that renders the Action of killing the Enemy entirely innocent, but an Impunity, such as I have described, as appears from other Places. Tacitus11 said, In Time of Peace every one is treated according to his Desert, but in War the Guilty and Innocent fall alike. And in another Place,12Neither would the common Right of Men permit them to reward so unnatural a Murder, nor the Law of Arms to punish it. Neither is the Right of War to be otherwise taken, where Livy13 mentions, that the Greeks spared Aeneas, and Antenor, because they had been always for Peace. And Seneca in his Tragedy of Troas.

• Quodcunque libuit facere, victori licet.
• The Victor’s Will is an assured Law.

And in his Epistles,14Those Things, which would be punished with Death, had they been done in secret and by private Authority, are commended, when done by Generals of Armies. And St. Cyprian,15It is a Crime when a private Person is guilty of Homicide, but when it is done by publick Authority it is called a Vertue; Crimes acquire the Right of Impunity, not because they do but little hurt, but because the Cruelty of them is carried to a great Excess. And a little farther, the Laws connive at Sin, and that is esteemed lawful, which is authorised by the State. Thus Lactantius says,16 that the Romans did lawfully injure others; and in the same Sense Lucan,17Crimes were authorised.

VI.All that are found among Enemies may be killed or hurt.VI. But this Right of Licence is of a large Extent, for it reaches not only those who are actually in Arms, and the Subjects of the Prince engaged in War, but also all those who reside within his Territories; as may appear from that form in Livy.aLet him, and all that live within his Country, be our Enemies. And no wonder, since we may apprehend Damage from them, which in a general and uninterrupted War is enough to justify the Right here spoken of, otherwise than in Reprisals, which, as I have said, [[b were first introduced after the manner of Taxes laid for the Payment of publick Debts. Wherefore we are not to be surprised, if, as Baldusc observes, this Licence in War be much greater, than that in Reprisals. And without doubt Strangers, that come into an Enemy’s Country after a War is proclaimed, and begun, are liable to be treated as Enemies.

VII.What if they came thither before the War.VII. But they who went thither before the War, are by the Law of Nations allowed1 a reasonable Time to depart, which if they do not make2 <563> Use of they are accounted Enemies. For thus the Corcyreans, before they laid Siege to Epidamnus, gave Notice to all3 Strangers to depart, or else they should be reputed Enemies.

VIII.The Subjects of Enemies are every where to be attacked, unless in the Territories of a neutral State.VIII. 1. But such as are really Subjects of the Enemy, that is,1 from a permanent Cause, if we respect only their Persons, may in all Places be assaulted; because when War is proclaimed against a Nation, it is at the same Time proclaimed against all of that Nation, as we have shewna above, in the Form of Denunciation. So in the Decree against King Philip, They did will and command, that War should be denounced against him, and the Macedonians under his Dominion. And he that is an Enemy may by the Law of Nations, be assaulted every where; according to Euripides,2

• Νόμος γὰρ ἐχθρὸν δρἀ̑ν ὅπου λάβῃς κακω̂ς.

• Assault your Enemy where’er you find him.

And in Marcian the Lawyer,3Deserters, where-ever they are found, may be killed as Enemies.

]]

2. They may then lawfully be killed in their own Country, in the Enemies Country, in a Country that belongs to no Body, or on the Sea. But that we may not kill or hurt them in a neutral Country, proceeds not from any Privilege attached to their Persons,4 but from the Right of that Prince in whose Dominions they are. For all civil Societies may ordain, that no Violence be offered to any in their Territories, but by proceeding in a judicial Way, as we have provedb out of Euripides,

• If you can charge these Guests with an Offence,
• Do it by Law; forbear all Violence.

But5 in Courts of Justice, the Merit of the Person is considered, and this promiscuous Licence of hurting each other ceases, which I have said was granted among Enemies in Time of War.6Livy relates that seven Carthaginian Galliesc rode in<564> a Port belonging to Syphax, who at that Time was in Peace both with the Carthaginians and Romans, and that Scipio came that way with twod Gallies; these might have been seized by the Carthaginians before they had entered the Port, but being forced by a strong Wind into the Harbour, before the Carthaginians could weigh Anchor, they durst not assault them in the King’s Haven.

IX.This Right of hurting extends to Women and Children.IX. 1. But to return to the Point in Hand, how far this Licence extends itself, will hence appear, in that the Slaughter of Infants and Women is allowed, and included by the Right of War. I will not to this refer the slaying of the Women and Children of Heshbon by the Hebrews, Deut. ii. 34. nor that they were commanded to do the like to the Canaanites, Deut. xx. 16. and other Nations1 who were in the same Case2 with them. It was the special Act of GOD, whose Right over Men is far greater, than that of Men over Beasts, as we havee proved elsewhere. That which is more proper to testify the common Custom of Nations, is that of the Psalmist, Psal. cxxxvii. 9. Blessed shall he be, that taketh and dasheth thy little ones against the Stones. Like to that of Homer,3

• Καὶ νήπια τέκνα
• Βαλλόμενα προτὶ ἄστυ ἐν αἰνη̂ δηϊότητι

• When bloody Wars a wretched Land infest,
• The harmless Infants suffer with the rest.

2. The Thracians of old having taken the City My calessus, put Women and Children to the Sword, as Thucydidesf informs us. Ariang relates the same of the Macedonians, when they took Thebes; and so did the Romans at Ilurgis a City of Spain; ἔκτειναν ὁμαλω̂ς καὶ παιδιὰ καὶ γυναι̑κας, They slew Women and Children without Distinction, which are the Words ofhAppian. Germanicus Caesar is reported by4Tacitus, to have wasted the Villages of the Marsi, (a People of Germany) with Fire and Sword; adding, Neither Sex nor Age found any Pity. And the Emperor Titus5 exposed the Women and Children of the Jews to be devoured by wild Beasts in the publick Shews; and yet these two Princes were never esteemed to be of a cruel Nature: Whence it appears how much that Inhumanity was turned into<565>Custom. Now on der the nif old Men were also killed, as Priam by Pyrrhus. Aeneid. ii. 550. & seq.

X.Yea, and to Captives, and that at any Time.X. 1. Neither were Prisoners exempted from this Licence [[1 ; Pyrrhus in Seneca, according to the Custom at that Time, pleads thus:

• 2Lex nulla capto parcit, aut poenam impedit.
• No Law commands to spare the captive Slave,
• Or does forbid to punish him.

In the Ciris of Virgil, this Licence is called the Law of War, and that even with respect to captive Women; for thus argues Scylla:

• 3At belli saltem captivam lege necâsses
• By Law of Arms your Captive you might kill.

The Passage of Seneca just mentioned speaks of a Woman, namely Polyxena, who was to be killed. Horace advises,

• 4Vendere cum possis captivum, occidere noli.
• Forbear to kill the Captive, thou canst sell.

• Creech.

For he supposes it lawful to kill him. And Donatus derives the Word Servus (a Slave) from a Verb that signifies to preserve,5Because, says he, a Slave is a Person whose Life is preserved, which by the Right of War ought to have been taken away. Ought, is an improper Expression, for it was lawful: So the Prisoners taken at Epidamnus were killed by the Corcyreans as Thucydidesa relates, and 5000 Prisoners bybHannibal.6 And in Hirtius, a Caesarean Captain in the African War thus addresses Scipio,7I return you Thanks, that you have been pleased to engage your Word for my Life and Safety, being Prisoner by the Right of War.

]]

2. Nor is this Licence of killing our Captives confined to any Time, by the Right of Nations, but it is restrained more or less in some Places, by the particular Laws of each State.

XI.Yea, even such as are willing to yield, if not accepted of.XI. We meet also with many Examples of Suppliants that have been slain, as by Achilles in1Homer, of Mago, and Turnus in2Virgil; which are not only recorded, but also justified by the Right of War. St. Augustine commending the Goths, for sparing Suppliants, and those that had fled for Refuge to Churches, acknowledges,3That which by the Right of War they might do, they thought unlawful for them to do. Neither are they always received to Mercy, that beg it; witness<566> the Greeks4 who served the Persians at the Battle of the Granicus. And the Uspenses in Tacitus5 begging Quarter, which (he says) the Conquerors denied, but let them die by the Law of Arms. Observe here also the Right of War confessed by that Author.

XII.Yea, and to such as yield without Conditions.XII. Neither do they always find Mercy, thata surrender without any Condition, but are often slain, as the Princes of Pometia1 by the Romans, the Samnites2 by Sylla, thebNumidians, andcVercingetorix by Caesar. Nay, it was almost the constant3 Custom of the Romans on the Days of their Triumph to put to Death the Commanders of the Enemies, as Cicero tells us in his fifth Oration against Verres. Livy in his 28th Book, and elsewhere. Tacitus in his 12th Annal, and many others. And the same Tacitus informs us, that Galba4 caused the tenth Man to be killed of those, whom upon Submission he had received to Mercy; and Caecina upon the Surrender of Aventicum, caused Julius Alpinus to be slain, as the chief Promoter of the War; he left the rest to either the Mercy, or Cruelty of Vitellius.

XIII.This Right not to be referred to any other Cause, as Retaliation, Obstinacy of Defence, &c.XIII. 1.a Historians sometimes set down the Reason of this Cruelty, of the Enemies, especially to Captives, and Suppliants, as either by way of Retaliation, or because of an obstinate Defence. But these are rather Motives, than justifying Causes, as I have distinguished in another Place. For just Retaliation (properly so called) is to be executed only upon the Person of the Offender (as has been already said,b when we treated of the Communication of Punishment.) But on the contrary, in War this Right of Retaliation is often exercised upon the Innocent. This Custom is thus described by1Diodorus Siculus, The Chance of War being equal on both Sides, neither Party can be ignorant, that if they be vanquished, they must suffer the same themselves, which they intend to their Enemies. And in the same Author, Philomelus the Phocian General, Diverted the Enemies from an insolent and cruel Revenge, by treating in the same manner such of them as fell into his Hands.

2. But there is no Man will judge an obstinate Adherence to our Party punishable, as the2Neapolitans alledged to Belisarius in Procopius; especially if we were engaged therein either by a natural Obligation, or by an honest and deliberate Choice. It is so far from being a Crime, that on the contrary it is reckoned one if<567> a Man quits his Post, especially by the Laws of the antient Roman Discipline; for in this Case they rarely allowed any Excuse, were the Fear or Danger never so great.3Livy says, to desert a Post was capital among the Romans. Every one therefore may use this Rigour to his own Advantage, and this Rigour is justified before Men, by that Right of Nations, which we now treat of.

XIV.It extends also to Hostages.XIV. This Right also reaches to Hostages, nor to them only, who freely give themselves as Pledges by a Sort of Agreement, but also those who are delivered up by others. 250 Hostages were slain by theaThessalians, and 300 of the Volsci Aurunci by thebRomans. And we must observe, that sometimes Children were given as Hostages, as we may learn from the1Parthians, and fromcSimon Macchabaeus, and sometimes Women, as by the Romansd in the Time of Porsena, and by the2Germans in Tacitus.

XV.By the Law of Nations it is forbidden to kill any by Poison.XV. 1. As the Law of Nations permits many Things, in the Sense we have explained, which are forbid by the Law of Nature, so it prohibits some Things allowed by this Law of Nature. For if we respect the Law of Nature, when it is permitted to kill a Man, it signifies not much, whether we do it by the Sword or Poison. I say the Law of Nature, for indeed, it is more generous to attempt another Man’s Life in such a manner, as to give him an Opportunity of defending himself, but we are under no Obligation to use such Generosity towards those who deserve to die. But the Law of Nations, if not of all, yet of the more civilized, allows not the taking the Life of an Enemy, by Poison; which Custom1 was established for a general Benefit, lest Dangers should be increased too much, since Wars were become so frequent. And it is probable, that it was first introduced by Kings. For if their Life be more secure, than that of others, when attacked only by Arms; it is, on the other Hand, more in danger of Poison, unless protected by a regard to some Sort of Law,2 and the fear of Disgrace and Infamy.<568>

2. Livy speaking of Perseus,3 calls it a clandestine Villany. Claudian of the Offer of Pyrrhus’s Physician to poison him rejected by Fabricius,4 calls it an abominable Action; and Cicero5 hinting at the same Story terms it a Crime. It concerns the common Interest of Nations, that no such Examples be given,6 say the Roman Consuls, in their Letter to Pyrrhus, which Gellius recites out of Cl. Quadrigarius; and Val. Maximus7 observes, Wars should be waged by Arms, not by Poison. And Tacitus8 relates, that when the Prince of the Catti offered to poison Arminius, Tiberius refused it, imitating by that glorious Action the Conduct of antient Generals. Whereforea they that hold it lawful to poison an Enemy (as Baldus9 did upon the Authority of Vegetius) do regard the mere Law of Nature, but over-look that Law which is established by the Consent of Nations.

XVI.Or to empoison Waters or Weapons.XVI. 1. Somewhat different from this manner of poisoning (as having something of open Force in it) is to poison the Heads of Darts, and thereby force Death a double way, which Ovid says1 was much practised by the Getes,2Lucan by the Parthians, and Silius by some of the3Africans, and Claudian particularly by the4Ethiopians. But this also is5 contrary to the Law of Nations, tho’ not of all, yet of the European, and others civilized like them, which is rightly observed by Johannes Salisberiensis,6 whose Words are these: Neither do I find the Use of Poison allowed by any Law, tho’ sometimes practised among Infidels. Therefore Silius calls it,7to render Arms infamous by Poison.

2. So also the empoisoning of Springs (which cannot be concealed, or at least not long) Florus declares to be contrary not only to the Custom of the antient Romans, but also to8 the Laws of the Gods; for the Antients frequently ascribed to the Divinity the Rules of the Law of Nations, as I have elsewhere observed; neither should it seem strange, that there are such tacit Agreements among Nations, in order to lessen the Dangers that attend Wars, when of old it was agreed between the<569> Chalcidians9 and Eretrians during the War, Μὴ χρη̂σθαι τηλεβόλοις, Not to make use of Darts.

XVII.But not any other ways to corrupt the Waters.XVII. But it is not the same, when Waters are1 (without Poison) so corrupted,2 that they cannot be drunk, which Solon, and the3Amphictyones approved against the Barbarians. Oppianus, of Fishing, declares it was commonly done in his Time; it being, in Effect, the same Thing as if the Current of a Rivera were turned, orbThe Veins of a Spring cut off, which, by the Law of Nature, and the general Consent of Nations, are allowed.

XVIII.Whether it be against the Law of Nations to employ Assassins, explained.XVIII. 1. But it is frequently disputed, whether the Law of Nations permits the sending one privately to kill an Enemy. But to explain this, we must distinguish between the Persons sent; whether they violate their Faith, given expressly or tacitly; as Subjects to their Prince, Vassals to their Lord, Soldiers to their General, Suppliants, Strangers, or Deserters to them that have entertained them; or whether the Person sent owe no Faith to him against whom he is employed. Thus Pepin Father of1Charlemagne, attended with only one of his Guard, passed the Rhine, and killed his Enemy in his own Chamber. Which2Polybius relates was attempted by Theodotus, an Aetolian, against Ptolemy, King of Aegypt, in the same Manner, calling it, Ὀυκ ἄνανδρον τολμὴν, An Act of Bravery. Such was that famed Enterprizea of Q. Mutius Scaevola, which he himself thus defends, I being an Enemy would have killed an Enemy.3Porsena himself acknowledged this to be an Act of great Valour.4Valerius Maximus calls it, A commendable and gallant Resolution; and Cicero5 praises it in his Oration for P. Sextius.

2. For to kill an Enemy any where is allowed, both by the Law of Nature and of Nations (as I have said already), neither is it of any Concern, how many or how few they be who kill or are killed. 600 Lacedemonians with Leonidasb marched through the Enemy’s Camp to the King’s (Xerxes) Pavilion;*The same might have been done by fewer. There were but a few that circumvented Marcellusc the Consul, and slew him; and but a few had almost killed Petilius Cercalisd in his Bed.6 St. Ambrose brose commends Eleazar, that assaulted a mighty Elephant,<570> higher than all the Rest, supposing the King had sat upon it. Neither are they only that make these Attempts, but also they that employ them, excusable by the Law of Nations.e Those antient Roman Senators, such religious Observers of the Laws of War, were esteemed the Authors of that gallant Attempt of Scaevola.

3. It is to no Purpose to object, that such Men, being taken, are commonly put to exquisite Torments; for that is not because they violate the Law of Nations, but because, by the same Law of Nations, any Thing done against an Enemy is lawful, and every one is more or less severe as he judges it proper for his Interest. For so are Spies used, yet it is held lawful, by the general Consent of Nations, to send such, as Moses did, and such was Joshua himself (Ἔθος τοὺς κατασκόπους κτείνειν, It is the Custom to kill Spies, said7Appian) and that justly sometimes, by such as have manifestly a lawful Cause to make War, by others with Impunity, which the Law of Arms grants. But if there be anyfthat will not make Use of such Service when offered, that is rather to be attributed to Magnanimity, and the Confidence of one’s own Strength, than to an Opinion of its being unjust.

4. But the Case is otherwise of those Assassins who act treacherously, for they not only transgress the Law of Nations, but also those that employ them. For tho’ in other Things, they that make Use of wicked Instruments against an Enemy, may be reputed guilty before GOD, yet not before Men, that is, they have not offended against the Law of Nations; because,

• 8Mores leges perduxerunt in potestatem suam.
• Custom has prevailed above Laws.

And, To deceive (Pliny9says) according to the Custom of the Age, is Wisdom; yet this Custom does not reach to the killing an Enemy, for he that should thus make Use of another Man’s Treachery, is held not only to10 offend against the Law of<571> Nature, but also of Nations. This is plain from what Alexander11 wrote to Darius, Ye wage impious Wars, and tho’ you carry Arms, you set a Price upon your Enemies Heads. And again, You do not observe towards me12the Law of Arms. And in another Place, I ought to persecute him to Death,13not as a just Enemy, but as a Poisoner, and an Assassin. And to this we may refer that of Livy,14 concerning Perseus, He does not wage a just War like a Prince, but uses all base and clandestine Villainies, like Thieves and Poisoners. And Marcius Philippus, of the same Perseus,15All which, how hateful they were to the Gods, he would find by Experience. And also Valerius Maximus, The Murder of Viriatus,16had a double Perfidiousness, the one in his Friends, who killed him; the other in Q. Servilius Caepio, the Consul, who was the Author of it, by promising Impunity, and who thus bought the Victory, instead of gaining it by open Force.

5. Now the Reason why this is not allowed, as in other Cases, is what we gave before in the Case of Poison, to lessen the Dangers attending those who are at War,<572> especially Persons of the17 most distinguished Rank. Eumenes (in Justin) said, He could not believe,18that any Commander would so desire to conquer, (viz. by hiring to kill his Enemy) as to set so bad an Example against himself. And in the same Author, when19Bessus had assassinated Darius, it is said, It was not to be endured for Example’s Sake, and that it was the common Cause of all Kings. And Oedipus, to justify the Killing of King Laius, says, in Sophocles,

• 20 Κείνῳ προσαρκω̂ν ον̂̔ν ἐμαυτὸν ὠϕελω̂.
• Assisting him, I also help myself.

And in Seneca, on the same Subject,

• 21Regi tuenda est maximè Regum salus.
• Kings should, in Honour, save their fellow Kings.

And the Roman Consuls, in their Letter to22Pyrrhus, It concerns the common Interest of Nations, that we endeavour your Safety.

6. In a solemn War then, and among those who have a Right to denounce a solemn War, it is not allowed: But where there is no solemn War it is accounted lawful, by the same Law of Nations. So Tacitus23 declares the Plot against the Life of Gannascus, was not dishonest, because he was a Traitor. Curtius said, the Treachery of Spitamenes24 to Bessus was the less odious, because no Perfidiousness seemed unjust against a Murderer of his Prince. Thus Treachery towards Robbers and Pirates, tho’ it be not altogether blameless, yet is not punished amongst Nations, in Detestation of those against whom it is committed.

XIX.Whether Ravishing of Women be against the Law of Nations.XIX. 1. The Ravishing of Women is sometimes permitted in War, and sometimes not. They that permit it, respect only the Injury done to the Body of an Enemy, which by the Law of Arms they think should be subject to all Acts of Hostility. But others, with more Reason, look not to that Injury alone, but also to the Act of Brutality, which being neither necessary for the Security of those who commit it, nor proper for the Punishment of those against whom it is committed, should be as much punished in War as in Peace; and this last is the Law of Nations, if not all, yet of the most civilized. So Marcellus, before he took Syracuse, is recorded to have taken1particular Care to preserve the Chastity, even of his Enemies. Scipio (in Livy) said it concerned his own Honour, and that of the People of Rome,2that nothing reputed sacred, by<573> the more civilized Nations, should be profaned by them (his Soldiers). Diodorus Siculus culus complains of Agathocles’s Soldiers,3 ον̂̔τε τη̂ς εἰ̂ς γυναι̑κας ὕβρεως καὶ παρανομίας ἀπέσχοντο, They did not abstain from that detestable Crime of violating the Chastity of Women. Aelian speaking of the victorious Sicyonians ravishing the Wives and Virgins of the Pellenaeans, exclaims,4 Ἀγριώτατα ταν̂τα ὠ̑ Θεοὶ Ἑλλήνοι, καὶ οὐδὲ ἐν βαβάροις καλὰ κατάγε τη̂ν ἐμὴν μνείαν, These, (O ye Gods of Greece!) are Acts so cruel and abominable, as were never practised among the Barbarians, as far as I can remember.

2. And certainly, this should be5 observed among Christians, not only as a Part of military Discipline, but as a Part of the Law of Nations, viz. that whosoever ravishes a Woman, tho’ in Time of War, deserves to be punished in every Country. For by the Hebrew Law none did it without Punishment, as we6 may gather from that Part which treats of a captive Woman, Deut. xxi. 10. That the Master might marry her, but upon Dislike might not sell her. Thou shalt not take Money for her, because thou hast humbled her. Upon which Beccai, one of the Hebrew Doctors, thus comments, GOD would have the Camp of Israel to be holy, not defiled with Whoredoms, and other Abominations, like the Camp of the Gentiles. Arrian, speaking of Alexander’s falling in love with Roxana, says, Οὐκ ἐθελη̂σαι ὑβρίσαι καθάπερ αἰχμάλωτον, ἀλλὰ γη̂μα γὰρ οὐκ ἀπαξιω̂σαι, He would not ravish her, as a Captive, but honourably married her. Which he highly7 commends. And8Plutarch, of the same, Οὐκ ὕβρισειν, ἀλλ’ ἔγημε ϕιλοσόϕως, He scorned to debauch her, but married her; which was an Action worthy of a Philosopher. Plutarch also mentions one Torquatus, Banished, by the9Romans, into the Island of Corsica, for ravishing his Prisoner.

[1 ]Aeneid. Lib. X. ver. 11. & seqq.

[2. ]Nam si quando homines aut animalia, &c. In Aeneid. Lib. X. ver. 14.

[3. ]These Words have already been cited, upon Paragraph 7. of the preceding Chapter, Note 4.

[4. ]I do not see how our Author can deduce this Consequence from the Passage of Servius. It is plain, in my Opinion, that all the Grammarian means, is, that before War was declared, in the Manner which he informs us was usual, it was allowed to plunder; because, before that, the People of whom there was Room to complain were not yet considered as Enemies; in a Word they were not yet at War.

[a ]Ch. 3. § 1.

[1 ]He speaks of Things indifferent in themselves, as is the Use of all Kind of Meats without Distinction, from which, however, we ought to abstain, when eating them is not expedient; that is to say, when some bad Effect, either in Relation too thers, or ourselves, may result from it. But then those Things become obligatory; and consequently, the Passage makes nothing to the Subject. See what our Author himself says, in his Notes upon the New Testament.

[2. ]Tertullian against Marcion, I. Abstinence from Marriage would be no Matter of Commendation, if Licence (to marry) were taken away. See the same Author, B. I. Ad uxorem, upon this Subject, and concerning Flight in Times of Persecution; and St. Jerome against Helvidius, A Virgin deserves the greater Honour, while she disdains that, which to do were no Sin. And against Jovinian, Therefore does CHRIST love Virgins the more, because they freely give what was not commanded them: And to Pammachius, Difficult and heroical Actions are always left to the Choice of those who have Courage to undertake them, that, as they are free, they may be worthy of Recompence. And Saint Chrysostom, upon 1 Cor. vii. declares Continence to be the better; and upon Rom. vii. 6. If we keep not the Commandments, we are threatened with Hell, thereby shewing that Things positively commanded, are not like those that are left to the free Choice of the Combatant, (such are Virginity, and the renouncing of our Possessions) but the others must of Necessity be performed: And in his second Oration, concerning Fasting, Heleft Virginity without the Lists, he left it above what we are commanded to strive for, so that they who keep it may shew the Greatness of their Soul, and they who do not may enjoy the Favour of GOD. Which he afterwards applies to ἀκτημοσύνη, The Renouncing of Possessions. To which we may add what Gratian gathers out of St. Austin, and others. Caus. XIV. Quaest. I. Grotius.

This Distinction between Counsels and Precepts, and the Application of it to the Examples here given by our Author, have been sufficiently refuted, B. I. Chap. II. §9. Note 19.

[a ]Lib. 1. c. 18.

[3. ]Stromat. IV. where, among other Things, he speaks of one married a second Time, He does not indeed sin against the divine Covenant, for there is no Law that forbids it; but he does not fulfil that most excellent Perfection of an evangelical Life.Grotius.

That Father speaks here indeed of second Marriages, but in the Words immediately going before he seems to speak of Polygamy in general, as simply contrary to evangelical Perfection, whether a Man has several Wives one after another, or at the same Time. He says, that GOD not only permitted, but required, under the Law, that Men should marry in that Manner, for the Multiplication of Mankind. Ἀλλ’ ὁ αὐτὸς ἀνὴρ, &c.

[b ]Ad Pollent. l. 1. c. 13. and 18.

[4. ]Heic autem ubi de dimittendo, &c. Ad Pollent. De adulter. conjug. Lib. I. Cap. XIX. See Canon Law, Caus. XXVIII. Quaest. I. (Cap. VIII. IX.) where many Things have been copied from Chap. XIV. and XVIII. Grotius.

[5. ]Si tamen quum posset effundere, Digest. Lib. XVIII. Tit. VI. De periculo & commodo rei venditae, Leg. I. § 3. This Example is ill applied. See what I have said upon Pufendorf, Law of Nature and Nations, B. V. Chap. V. § 3. Note 8. of Edition II.

[6. ]Tertullian, in his Exhortation to Chastity, Permission often exposes one to the Temptation of violating the Rules of the Gospel: And again, all Things are lawful, but we cannot do every Thing that is lawful without Prejudice to Salvation. And Columella, in his Preface to B. VII. Neither must we take Advantage of what so ever is lawful, for the Antients reputed Summum jus, the Rigour of the Law, to be the greatest Torment. And St. Jerom, The Rigour of Law is the highest Wickedness. Ep. ad Innocent. Grotius.

[7. ]See Pufendorf, B. VII. Chap. I. § 3. Law of Nature and Nations.

[8. ]Sunt enim quaedam, &c. Instit. Orat. Lib. III. Cap. VI. p. 173. Edit. Obrecht. But Mr. Bynkershoek has shewn, in his Observat. Jur. Civ. Lib. I. Cap. I. that this Orator, and some other antient Authors, have mistaken the Law of the Twelve Tables, which only signifies, that the Creditors might sell their Debtor by Auction, in Order to divide the Price of his Liberty between them. This is not the only Instance wherein Moderns have understood certain Passages of Antiquity better than antient Authors.

[9. ]In speaking of Cinna, who had unjustly put some illustrious Romans to Death. Beatusne igitur, qui hos interfecit, &c. Tusculan. Quaest. Lib. V. Cap. XIX.

[10. ]Heic jam, judices, vestri consilii res est, &c. Orat. pro C. Rabir. Posthum. Cap. V.

[11. ]This is what St. Chrysostom says, where he speaks of St. John the Baptist, who, notwithstanding that, presumed to say to King Philip Herod, and with Authority: It is not lawful for you to have this Wife. De Poenitent. VIII. Grotius.

[c ]B. i. ch. 3, 4.

[12. ]De IV. Consul. Honor. ver. 267.

[13. ]Stobaeus has preserved this Saying. The Philosopher added, that the Princes who use such Language to their Subjects, do not long retain their Dignity. Florileg. Tit. XLVI. (or XLVIII.) Admonit. De Regno. p. 328. Edit. Gesner. 1549.

[14. ]He gives, for Instance, the Permission of going into Bawdy-Houses. Potest, inquit, Haec enim Lex, quid oporteat, quaerit; aliae, quid Liceat. Licet ire in lupanar. Lib. IV. Controv. XXV. p. 308.

[15. ]Dissimulansscire, quod suntaliqua, quae fieri non oportet etiamsi Licet. Lib. XXX. (Cap. VIII. p. 657. Edit. Vales. Gron.)

[16. ]Oportet quidem, quae sunt inhonesta, non quasi illicita, sedquasipudenda, vitare. Lib. V. (Ep. XIV. Num. 9. Edit. Cellar.)

[17. ]Est enim aliquid, quod non oporteat, etiamsi Licet. (Cap. III.)

[18. ]Ut eum nihil delectaret, quod aut per naturam Fas esset, aut per leges Liceret. Cap. XVI.

[19. ]Ego porro non hanc interpretationem is tius verbi video ut jura spectanda sint, sed illud aliquando, uti justitia spectetur. Declam. CCLI. (See also Declam. CCCLXVI. in fin.)

The Reader, upon this Subject, may see my two Discourses, De Legum permission. & Benefic. which are annexed to the fourth Edition of Pufendorf’s De Offic. Homin. & Civis.

[a ]Ch. 1. § 2. & seq.

[1 ]L. Sulla cui omnia in victoria, &c. (Orat. II. Ad Caesar. De Republ. Ordinanda, Cap. XLVIII. p. 126. Edit. Wasse) Seneca makes Pyrrhus say the same Thing in one of his Tragedies:

• Quodcumque libuit facere Victori, licet.
• Troad. (Ver. 335.)

[1 ]It is not necessary to suppose here a tacit Consent of Mankind, or an arbitrary Law of Nations, of which the Reality cannot be proved. We can produce very good Reasons, founded on the Law of Nature itself, and which take Place with regard to other Wars, besides those that are publick and declared in form, to which our Author without Reason confines the Impunity he speaks of. Let us suppose, that in the Independence of the State of Nature, thirty Heads of Families, inhabiting the same Country, but having no other Tye amongst them, than that of Neighbourhood or Friendship, which Neighbourhood might occasion; should form a League amongst themselves to attack or repel a Body, composed of other Heads of Families: I say, that neither during that War, nor after its being terminated, those of the same Country, or elsewhere, who had not joined in the League of either Side, ought or could punish as Murtherers or Robbers, any of the two Parties who should happen to fall into their Hands. They could not do it during the War: For that would be espousing the Quarrel of one of the Parties, and as they continued Neuter at first, they had evidently renounced the Right of intermeddling in what should pass in the War. And much less could they do it after the Conclusion of the War; because as the War could not be concluded without some Sort of Accommodation or Treaty of Peace, the Parties concerned were reciprocally discharged from all the Evils they had done to each other. This the Interest of human Society also required. For if those, who continued Neuter, had however been authorised to take Cognizance of the Acts of Hostility, exercised in a War of others, and to punish such as they believed to have committed unjust ones, or to take up Arms on that account, instead of one War, two or more might have arisen and proved a Source of Quarrels and Troubles. The more Wars became frequent amongst Mankind, the more it was necessary for their Tranquillity, as well to avoid espousing rashly other People’s Quarrels, as, when it was not judged proper to take Part in a War, to consider all that should pass in such a War, as authorised by the Right of Arms. The Establishment of civil Societies only rendered this Impunity the more necessary; because Wars then became, if not more frequent, at least more extensive, and attended with a greater number of Evils. There is nothing then here, which either requires the general Consent of Nations, or is peculiar to Wars made between two Sovereigns, and declared in form. The Effect in Question, is founded on one of the clearest and most general Laws of natural Right, and the Custom of most Nations, conformable to it, only renders the Practice of it more indispensible, since, as I have observed several Times, we are, and ought to be, deemed to conform to a known Custom, when we do not declare at a proper Time that we intend not to follow it. Our Author excepts the Wars against Robbers and Pirates: But he probably makes the Exception only with respect to them, as he has done above, in regard to the Right of appropriating to ourselves Things taken in War, § 12. of the preceding Chapter. Now, if those Robbers have not the Privilege of Impunity, it is because they are Robbers, (See Demosthenes, Orat. de Halones. Princ.) and consequently People, whose Acts of Hostility are all manifestly unjust, the declared Enemies of Mankind: Whereas in other Wars, it is often very difficult to determine which Side is in the Right; so that the Affair remains, and ought to remain, undecided, with regard to those, who have joined neither Party. As to civil Wars, which our Author excepts also, the Reasons I have alleged are still stronger with regard to them, than with regard to the Wars made between two Kings, or two States; because the Constitution of civil Societies, and the Peace of Mankind make it still more requisite, that Strangers should not rashly intermeddle in what passes within a State. And it is quite another Question, whether Impunity, and the Right of appropriating to ourselves what is taken in War, have, or have not, Place amongst the Members of the same civil Society, either in the Wars of one Part of a Republick against the other, or in those of a King against his Subjects: The Decision of that Question depends on other Principles. In fine, I do not see, that the Declaration of War contributes any Thing to the Effects under Consideration. It is often no more than a meer Ceremony. But whether the War be, or be not, declared, the Reasons I have laid down still subsist in all their Force. See further what I have said in the preceding Chapter, § 6. Note 13. and § 11. Note 2.

[2. ]Atque ex auctoritate [legati Massiliensium] haec, &c.Caesar, De Belle civili, Lib. I. Cap. XXXV.

[3. ]Quonam modo ea, quae belli jure, &c. Lib. XXXIX. Cap. XXXVI. Num. 11.

[1 ]Ione, Ver. 1334.

See also Ver. 1046, 1047. Plato says, that according to an antient Law, founded upon an Oracle at Delphos, those, who had killed an Enemy in War, ought not to be looked upon as defiled; no more than if they had killed a Friend without Design in some publick Exercise: About which the Philosopher makes a Law in his imaginary Republick; where he often borrows those already established amongst the Greeks. De Legib. Lib. IX. p. 165. A. B. Vol. I. Edit. H. Steph.

[2. ]See above, B. I. Chap. II. § 5. with the Notes 5 and 7. I find a remarkable Passage on this Subject in Antiphon, Orat. XIV, XV. The Greek Orator says, that the Reason why all Tribunals, which take Cognizance of Murther, judge and pass Sentence in an open Place, is solely, that the Judges may not be in the same Place with the Criminal, whose Hands are polluted with Blood, and that the Accuser also may not be under one Roof with the Murtherer, p. 93. Edit. Wechel. See also Orat. XVI. p. 139.

[3. ]Quae autem singulis victor aut ademi, aut dedi, quumBelli jure, tum excujusque merito satis scio me fecisse, Lib. XXVI.

[4. ]Sed haec patienda censeo potiús, &c. Idem, Lib. XXI. (Cap. XIII.) Num. 9.

[5. ]Atque haec tamen hostium iratorum, ac tum maxime dimicantium,Jure belli, in armatos repugnantesque edebantur, Lib. XXVIII. Cap. XXIII. Num. 1.

[6. ]Tibi porro inimicus cur esset, a quo quum interficiBelli Lege, &c. Cap. IX.

[7. ]Nam quum, ipsiusVictoriaeconditione,Jureomnes victi occidissemus, &c. Cap. IV.

[8. ]Caesar, nuntiis ad civitatem Aeduorum missis, &c. Comment. De bell. Gall. Lib. VII. (Cap. XLI.)

[9. ]De bell. Judaic. (Lib. III. Cap. XXIV. p. 852. B.)

[10. ](Thebaid. Lib. XII. Ver. 552, 553.) The Grammarian Servius observes, that Priam complains, not that Pyrrhus had killed his Son Polytes, as he might do by the Right of War: But that he had made the Father the wretched Spectator of the Son’s Death: Me cernere] De spectaculo queritur, non de morte. QuiaJure Belli Polyten Pyrrhus occiderat: Sed cur ante oculos patris? In Aeneid. II. (Ver. 538.) Spartianus speaking of the Persons, whom the Emperor Severus had caused to be put to Death, distinguishes those who had been killed by the Law of Arms: Multos praetereaobscuri loci homine interemite, praeter eos, quos jus praelii absumsit. In Vit. Sever. (Cap. XIV.) Grotius.

[11. ]Nam in pace caussas & merita spectari, &c. Annal. Lib. I. Cap. XLVIII. Num. 3.

[12. ]Celeberrimos auctoreshabeo, tantam victoribus adversus fas nefasque irreverentiam fuisse, ut gregarius eques, occisum a se proxima acie fratrem professus, praemiumaducibus petierit. Nec illis aut honorare eam caedem, jus hominum; aut ulcisci, ratio belli permittebat. Hist. Lib. III. Cap. LI. Num. 1, 2.

[13. ]Jam primum omnium satis constat, Troja capta, in ceteros saevitum esse Trojanos, duobus Aenea Antenoreque, & vetusti jure hospitii, & quia pacis, reddendaeque Helenae, semper auctores fuerant, omneJus BelliAchivos abstinuisse, Lib. I. Cap. I. Num. 3.

[14. ]Quae clam commissa capite luerent, eadem, quia paludati fecerunt, laudamus. Epist. XCV. (p. 464. Edit. Gron. Var.) See what is said above, B. II. Chap. I. § 1. Num. 3. Grotius.

[15. ]Madet orbis mutuo sanguine, &c. Epist. II. Edit. Pamel. or Lib. Ad Donatum, de gratia Dei, p. 5 and 7. Edit. Fell. Brem.

[16. ]Quantum autem, &c. Instit. Divin. Lib. V: Cap. IX. Num. 4. Edit. Cellar.

[17. ]

• Jusque datum sceleri canimus ——
• Pharsal. Lib. I. Ver. 2.

[a ]Liv. l. 38. c. 48. See above, ch. 2. of this book, §2. n. 2.

[b ]Ch. 2. of this Book, §7. n. 2.

[c ]Ad Leg. V. Dig. De Justitia.

[1 ]See Bembo, Hist. Lib. I. Cicero justifies Ligarius for this Reason, that being in Africa before the Civil War, it was not in his Power to leave it when it broke out suddenly: [Tertium est tempus, quo post adventum Vari in Africa restitit Ligarius; quod si est criminosum, necessitatis crimen est, non voluntatis. An ille, si potuisset illinc ullo modo evadere, Uticae potius, quam Romae; cum P. Attio, quam cum concordissimis fratribus; cum alienis esse, quam cum suis, maluisset? Orat. pro Ligar. Cap. II.] The Roman Consuls, when they went to besiege Capua, had Orders to declare first to the Campanians within it, that if they thought fit, they might quit the Place with all their Effects: Consulibus literae a P. Cornelio praetore missae, Ut prius quam clauderent Capuam operibus, &c.Livy, Lib. XXV. (Cap. XXII. Num. 12.) Grotius.

[2. ]The late Mr. Cocceius, in a Dissertation which I have already cited, De jure Belli in amicos, § 23. rejects this Distinction, and is of Opinion, that even Strangers, to whom some small Time to retire has not been given, should be deemed of the Enemy’s Party, and thereby liable to just Acts of Hostility. He himself afterwards distinguishes, to supply this pretended Defect, between Strangers, who continue in a country, and those, who only pass thro’ it, or if they make any stay, are obliged to do so either by Sickness, or the Necessity of their Affairs. But even this shews, that Mr. Cocceius here, as well as in many other Places, has censured our Author without understanding him. In the following Paragraph, Grotius evidently distinguishes, from the Strangers he speaks of just before, those, who are the Enemy’s Subjects from a permanent Cause; by which without doubt he means, as the learned Gronovius explains it, those who are settled in the Country. Our Author explains himself upon this Head, in Chap. II. of this Book, § 7. Num. 2. where he speaks of Reprisals, which he even grants against this kind of Strangers; whereas he does not admit them against those who only pass thro’, or stay some short Time in the Country. So that here is the precise Distinction, which the Critick gives for new.

[3. ]They extended this Permission to the People of the City, as well as Strangers. Thucyd. Lib. I. Cap. XXVI. See another Example in the same Historian, Lib. IV. Cap. XV. where a Term of five Days is granted them to depart.

[1 ]See above, Chap. II. of this Book, § 7. Num. 2. and Note 2. upon the preceding Paragraph of this Chap. IV.

[a ]Ch. 3. of this Book, §9.

[2. ]This is a Fragment of a Tragedy of that Poet’s, which is not named by the Writer, who has preserved it: It is in p. 429. of our Author’s Excerpta, and the 363d Verse of Mr. Barnes’s Collection; neither of them mention the Author from whom they take it.

[3. ]Transfugas licet, ubicumque inventi, &c. Digest, Lib. XLVIII. Tit. VIII. Ad Leg. Cornel. de Sicariis, &c. Leg. III. § 6.

[4. ]See what we shall say below, Chap. VI. § 26. and Albericus Gentilis, Hispanic. Advocation. Lib. I. Cap. VI. as also Paulus Matthias Wechner, Consil. Franconic. XCII. Grotius.

[b ]B. 2. ch. 21. §6. n. 1.

[5. ]Add, that the Sovereign of the Country, by continuing Neuter has tacitly engaged not to permit Acts of Hostility to be committed on either Side in his Dominions.

[6. ]Ipse [Scipio] cum C. Laelio, &c. Lib. XXVIII. (Cap. XVII. Num. 12. & seqq.) There are other Examples in History of the like Nature. The Venetians hindered the Greeks from attacking the Turks in one of their Ports. Chalcocondyl. Lib. IX. See what was done at Tunis in regard to the Venetians and Turks in Bembo, Lib. IV. and in Sicily, relating to the Pisans and Genoese. In Bizaro, De bell. Pisan. See also Paulinus, Gotth. in regard to Rostoch and Gripswald.Grotius.

[c ]Triremes, with three Oars on each Side.

[d ]Having five Oars on each Side and not three, as our Author says here.

[1 ]Quorum connexa cum Cananaeis erat caussa, says our Author: That is to say, whom the Divine Vengeance had condemned to be utterly extirpated, as well as the seven Nations of the Canaanites. Such were the Midianites,Numbers xxi. 2. the Amalekites,Exodus xvii. 14.

[2. ]Josephus speaking of the Amalekites says, that King Saul caused them all to be put to the Sword, without sparing either Women or Children. [See 1 Samuel xv. 3.] not believing, adds he, that he acted too cruelly in that respect; first because they were Enemies whom he treated in that manner, and next because what he did was by the Order of GOD, which he could not disobey without Danger. Antiq. Jud. Lib. VI. Cap. VIII. Grotius.

[e ]B. 2. ch. 21. § 14.

[3. ]Iliad. Lib. XXII. Ver. 61. The Emperor Severus, ordering his Soldiers to put all to the Sword in Britain, used some other Verses of Homer, in which Agamemnon says, that none of the Trojans should be saved, not even the Children in their Mother’s Wombs:

• —— Τω̂ν [τρώων] μήτις, &c.

[Iliad. Lib. VI. Ver. 57. & seqq. See Xiphilinus, Vit. Sever. p.342. Edit. H. Stephens.] Grotius.

[f ]Lib. 7. c. 29.

[g ]De Exped. Alexand. l. 1. c. 8. in fin.

[h ]Bell. Hispan. p. 457. Edit. Amst. (272. H. Steph.)

[4. ]Non sexus, non aetas, miserationem adtulit. Annal. Lib. I. Cap. LI. Num. 2. Scipio did the same at the taking of Numantia. The Emperor Julian’s Soldiers killed the Women of the City of Dacira, whom the Men had left in it; as Zosimus tells us, Lib. III. (Cap. XV. Edit. Cellar.) The same Emperor, when he took the City of Majozamalcha in the Country of Babylon, spared neither Sex nor Age: Et sine sexûs discrimine vel aetatis, &c.Ammian. Marcellin. Lib. XXIV. (Cap. IV. p. 436. Edit. Vales. Gron.) Grotius.

Our Author gives us no Authority for what he says of Scipio: And indeed in all Appearance he had none to give, but that of an unfaithful Memory. We find nothing like it in the Historians, who have writ of the War and taking of Numantia. Scipio, far from having put the Women and Children to the Sword, as Appianus Alexandrinus expressly says, kept only fifty of the Numantines, after the City surrendered, for his Triumph; all the rest were sold. De Bell. Hispan. p. 532. Edit. Amstel. (311. H. Steph.)

[5. ]I find nothing in Josephus, from whence it can be so much as inferred that Titus made the Jewish Women and Children encounter wild Beasts. On the contrary, that Historian says, after the taking of Jerusalem, Titus caused all those to be sold, that were under seventeen Years of Age. De Bell. Jud. Lib. VII. Cap. XVI. in Lat. (XLV. in Graec.) p. 968. C. Our Author has copied this from Albericus Gentilis, De Jure Belli, Lib. II. Cap. XXI. p. 425. But the latter alledges no Authority except Cardan’s, a very inaccurate Author, who declaims on that Head against Titus in his Encomium Neronis. The Words of the latter are Pergamus ergo ad illas humani generis delicias, Titum, Neronique comparemus, qui uno spectaculo aliquot millia Judaeorum, in quibus pueri & mulieres, feris dilaniandos exposuit. Auctor illius amicusJosephus : Ne quicquam ex fide decedere credas, Vol. I. p. 205. Opp. Edit. Ludg. 1663.

[1 ]Josephus speaking of the King of Syria’s People, who came to take Elisha, and having been struck with a miraculous Blindness saw themselves in the midst of Samaria; says, that King Joram, having asked the Prophet, whether he should put them to Death, that holy Man replied in the Negative, because it was lawful to kill none but Prisoners of War. (Antiq. Jud. Lib. IX. Cap. II. p. 303. D.) Virgil introduces such a Prisoner begging his Life of Aeneas:

• Per patrios manes, per spes surgentis luli,
• Te precor, hanc animam serves natoque patrique

By young Iulus, by thy Father’s Shade,

• O spare my Life, and send me back to see,
• My longing Sire, and tender Progeny!
• Dryd.

Aeneid. Lib. X. Ver. 524, 525. The Emperor Otho caused 70,000 Sclavonians to be put to Death, whom he had taken Prisoners, as Withikind informs us, Annal. Lib. II. Grotius.

[2. ]Troad. Ver. 333.

[3. ]Ver. 446.

[4. ]Lib. I. Epist. 69.

[5. ]Servi [dicuntur] qui servati sunt, quum eos occidi oporteret jure belli. In Terent. Adelphi, Act. II Scen. I. Ver. 28.

[a ]L. 1. c. 30.

[b ]Appian. Hannibal. Bell. p. 556.

[6. ]Et a M. Bruto non pauci. And M. Brutus also put many to Death. These Words, which were in the first, have disappeared, I know not how, in all the subsequent Editions; tho’ the Citation from Dion Cassius, Lib. XLVII. where the Fact is, p. 405. D. is continued in the Margin. They could not have been struck out designedly by our Author, who had no Reason to retrench a Fact well applied.

[7. ]Pro tuo, inquit, summo beneficio, Scipio, &c. De bell. Afric. Cap. XLV.

[1 ]See the Iliad. Lib. XX. Ver. 463. & seqq. Lib. XXI. Ver. 73. & seqq.

[2. ]The Passage, that regards Mago, has been given in Note 1. on the foregoing Paragraph. That in Relation to Turnus is in Aeneid. XII. 930. & seqq.

[3. ]Quod alibi jure belli licuisset, &c. De Civit. Dei, Lib. I. Cap. I.

[4. ]Our Author cites Nobody here, and would, I believe, have found it very difficult to have alledged any Authority for this Fact, with which his Memory supplied him. Alexander the Great’s Historians say nothing like it. That Conqueror sent the Greeks that were taken at the Battle of the Granicus into Macedonia to work as Galley-Slaves. See Arrian, De expedit. Alexandr. Lib. I. Cap. XVII. and at the End of this Book.

[5. ]Postero [die] misêre legatos [Uspenses]— quod adspernati sunt victores, quia trucidare deditos saevum, tantam multitudinem custodia cingere arduum: Ut belli potius Jure caderent. Annal. Lib. XII. Cap. XVII. Num. 1, 2.

[a ]See Thuan. l. 70. in fin. in the Affairs of Ireland, at the Year 1580.

[1 ]Or rather the principal Persons of the Aurunci, to whose Party this Latin Colony had gone over. Livy, who relates this Action, condemns it at the same Time: Ceterum nihilo minus foedè, dedita urbe, quam si capta foret, Aurunci passim principes securi percussi; sub corona vaenierant coloni alii, &c. Lib. II. Cap. XVII. Num. 6.

[2. ]I find nothing of this Kind in Relation to the Samnites, either in Plutarch or Appianus Alexandrinus. Our Author has followed Albericus Gentilis in this Place, without examining his Authority, De Jure Belli, Lib. II. Cap. XVII. p. 364. This appears from his citing, as he does, Dion. Lib. XLV. instead of XLIII. a Citation that relates to the Example of the Numidians, and not as our Author thought, to that of the Samnites, for which the Civilian, whom he copies, quotes no Writer. The latter probably had in his Thoughts, what Sylla did to the People of Antemna, a City of the Sabines, but not without notorious Perfidy, since he had promised them their Lives. Plutarch, in Vit. Syll. p. 471. D. Vol. I. Edit. Wechel. So that the Example is misapplied.

[a ]Dion Cassius. l. 43. p. 245. Edit. H. Stephens.

[c ]Idem, l. 40. p. 156.

[3. ]See Cicero, Lib. V. in Verr. (Cap. XXX.) Livy, Lib. XXVI. (Cap. XIII. Num. 14.) and elsewhere: Tacitus, Annal. Lib. XII. (Cap. XIX. Num. 3.) There is an Example of the same Kind in the Chronicle of Reginon, upon the Year 905. Grotius.

[4. ]Galba upon making his Entrance into Rome, ordered those who had surrendered to him to be decimated: Horror animum subit, quoties recordor feralem introitum, & hanc solam Galbae victoriam, quum in oculis Urbis decimari deditos jubenet, quos deprecantesin fidem acceperat.Tacit. Hist. Lib. I. (Cap. XXXVII. Num.3.) Quumque, direptis omnibus, Aventicum, gentis caput, &c. Ibid. Cap. LXVIII. Num. 5, 6. Grotius.

[a ]Chalcocondylas, l. 8.

[b ]B. 2. c. 21.

[1 ](Lib. XIV. Cap. XLVII. p. 421. Edit. H. Steph.) The other Passage is in Lib. XVI. Cap. XXXI. p. 526. See also what the same Historian says in the Excerpta of Mr. Peireskius, in regard to Spondius, and Amilcar Barca, (p. 277.) Grotius.

[2. ]It was not the Neapolitans, who made this Answer to Belisarius, but two Advocates, Pastor and Asclepiodotus, speak thus to the Goths and Neapolitans, Lib. I. Gotthic. Cap. VIII. Our Author has again in this Place relied upon Albericus Gentilis who expresses himself precisely in these Terms, Lib. II. De jure Belli, Cap. XVI. p. 345, 346.

[3. ]Praesidio decedere, apud Romanos, capital esse.Livy, Lib. XXIV. (Cap. XXXVII. Num. 9.) See also Polybius, Lib. I. (Cap. XVII.) and Lib. VI. (Cap. XXXV.) Grotius.

[a ]Plut. De Virt. Mulier.

[b ]Dion. Halicarn. l. 6 c. 30.

[1 ]Tacitus, whom our Author cites here in the Margin, speaks only of the Children of Kings in general, without saying whether young or not: Ideo Regum obsides liberos dari [a Parthis] &c. Annal. Lib. XII. Cap. X. Num. 5. He says elsewhere, partem prolis, Lib. II. Cap. I. Num. 2. In the Passage of the Maccabees, there is only ὑιούς. However as the Term is general; nothing hinders its including young Children, whom their tender Age and Innocence might render more dear to their Parents, and thereby more proper to serve as Sureties to those, who demanded or received them for Hostages. This may be inferred almost with certainty from a Passage in Strabo, quoted by Justus Lipsius : For we find there, that Phraates King of Parthia gives Titius, Governour of Syria for the Romans, four of his legitimate Sons as Hostages, with two of their Wives, and four of their Sons. Geograph. Lib. XVI. p. 1085, 1086. Edit. Amstel. (748. Edit. Casaub. Par.) For in this Number there must have been some Children very young. But the following are express Authorities. Suetonius informs us, that Caligula in one of his ridiculous Diversions, placed himself upon a Chariot in the Habit of a Coachman, and set an Infant, named Darius, before him, who was an Hostage of the Parthians: Postridie quadrigario habitu, curriculoque bijugi famosorum equorum, prae se ferens Darium Puerum, ex Parthorum obsidibus, &c. Vit. Caligal. Cap. XIX. The same Historian speaks elsewhere of certain Hostages, probably given by some People of Germany, whom Caligula ordered to be taken from School: Rursus obsides quosdam abductos e literario ludo, &c. Cap. XLV. But it is also known that the famous Clelia, having the Choice amongst all the Hostages given with her by the Romans, obtained Liberty for those, who were not arrived at the Years of Puberty: Productis omnibus eligisseImpuberesdicitur, &c.Livy, Lib. II. Cap. XIII. Num. 10.

[c ]1 Mac. xiii. 16.

[d ]In the famous Story of Clelia, Liv. l. 2. c. 13.

[2. ]Our Author cites here the fourth Book of Tacitus’s History in the Margin, where I find nothing to this Effect. The Passage is in the Description of Germany, where the Historian says, that those People believed themselves more strongly obliged, when they gave Maids of illustrious Birth as Hostages: Adeo ut efficacius obligentur animi Civitatum, quibus inter obsides puellae quoque nobiles imperantur, Cap. VIII. Num. 2. He adds, that the Germans imagined most Women to have a Spirit of Prophecy: And as he speaks also of this in the fourth Book of his History, Cap. I. XI. Num. 4. that probably made our Author confound the two Passages in his Memory.

[1 ]Without this general Consent, which it is more easy to suppose, than prove; it suffices to say, that, it being the Custom among Nations at Variance with us, not to make Use of Poison against an Enemy, we are supposed to comply with it, when on beginning a War, we do not declare, that we are at Liberty to act otherwise, and leave it to the Enemy’s Option to do the same. This tacit and particular Convention is so much the more real, as Humanity, and the Interest of both Parties, equally require it; since Wars are so frequent, and often undertaken upon so slight Occasions, especially since the Mind of Man, ingenious in inventing Means to do hurt, has so much multiplied those, which are authorised by Custom, and considered as honest. See upon this Head Mr. Gribner, Professor at Wittemburg, in his Principia Jurisprudentiae Naturalis, Lib. III. Cap. IX. § 3.

[2. ]The Senators, or rather the Consuls, C. Fabricius, and Q. Aemilius, in the Letter they wrote to inform Pyrrhus, that one of his People had offered to poison him, say, that it was not for his sake they gave him that Information, but that they might not incur the Infamy of having caused him to be destroyed in that Manner. [Plutarch, in Vit. Pyrrh. p. 396. C. Vol. I. Edit. Wechel.]Grotius.

[3. ]Haec ad ea, quae ab Eumene delata erant, accessire, quo maturius hostis Perseus judicaretur. Quippe, quem non justum modo adparare bellum regio animo, sed peromniaClandestinagrassariSceleralatrociniorum acVeneficiorumcernebant. Lib. XLII Cap. XVIII. Num. 1.

[4. ]

• ——Bellumque negavit [Fabricius]
• Per famuli patrareNefas.——
• De Bell. Gildonic. Ver. 273, 274.

[5. ]Sed magnum dedecus & flagitium, quicum laudis certamen fuisset, cum non virtute, sedSceleresuperatum. De Offic. Lib. III. Cap. XXII.

[6. ]Sed communis exempli & fidei ergo visum est, uti te salvum velimus; ut esset, quem armis vincere possemus.Ex Claud. Quadrigar. Noct. Attic. Lib. III. Cap. VIII.

[7. ]Et [memor Senatus] armis bella, non venenis, geri debere. Lib. VI. Cap. V. Num. 1.

[8. ]The Passage has been recited above, Chap. I. § 20. Note 21.

[a ]See Bemb. Hist. l. 2. in fin.

[9. ]That Lawyer would, I believe, have found it very difficult to point out the Passage of Vegetius, where he pretends to have read this: As Albericus Gentilis has already observed, De Jure Belli, Lib. II. Cap. VI. p. 256.

[1 ]They made use of the Gall of Vipers. Ovid, who tells us this, calls it giving Death two Ways with one Wound:

• Qui mortis saevo geminent ut vulnere caussas,
• Omnia vipereo spicula felle linunt.

De Ponto, Lib. I. Eleg. II. Ver. 17, 18. Pliny says of the Scythians, that they rubbed their Darts with human Blood, and the Gore of Vipers: Scythaesagittas tingunt viperina sanie, & humano sanguine, irremediabile id scelus, mortem illico adfert levi tactu.Pliny, Hist. Natur. Lib. XI. Cap. LIII. See Helmoldus’s Supplement, where he says something like this of the Servians, Chap. IV. Grotius.

[2. ]

• Spicula nec solo spargunt [Parthi] fidentia ferro
• Stridula sed multo saturantur tela veneno.
• Pharsal. Lib. VIII. Ver. 303, 304.

[3. ]The Nubians:

• Tempora multiplici mos est [Nubis] defendere lino,
• Et lino munire latus, scelerataque succis
• Spicula dirigere & ferrum infamare veneno.

Silius Italic. Lib. III. Ver. 271. & seqq. Nicholas Heinsius reads inflammare veneno.

[4. ]

• Sed didicit non Ethiopum geminata venenis
• Vulnera ——
• In I. Cons. Stilicon. Lib. I. Ver. 350.

[5. ]Therefore Ilus Mermerides denies Poison to Ulysses for his Darts.

• Ἐπεὶ ῥα θεον̂ς νεμεσίζετο αἰὲν ἔοντας.

• He justly dreaded the immortal Gods.
• Odyss. Lib. I. (Ver. 263.) Grotius.

[6. ]Nec Veneni, licet videam ab Infidelibus, &c. Polycratic. Lib. VIII. Cap. XX. p. 653.

[7. ]In the Verses quoted above, Note 3. upon this Paragraph.

[8. ]Where he speaks of a Roman General, who had poisoned the Springs, to oblige some Cities to surrender: AquiliusAsiatici belli reliquias confecit, mixtis (nefas!) veneno fontibus ad deditionem quarumdam urbium. Quae res, ut maturam, ita infamem fecit victoriam: Quippe quumcontraFas Deum, Moresque Majorum, medicaminibus impuris, in id tempus sacrosancta Romanorum arma violasset. Lib. II. Cap. XX. Num. 9. See ult.

[9. ]This the Geographer proves from a Column, upon which in his Time remained the Articles of the Conventions, those People had made with each other in Relation to Acts of Hostility. Lib. X. p. 688. B. (448. Edit. Paris.)

[1 ]By dead Bodies or Lime; as Belisarius did during the Siege of Auximum according to Procopius, Gotthic. Lib. II. (Cap. XXVII.) Grotius.

[2. ]The Turks did the same at Diadibra, as Nicetas tells us in the History of Alexis, Brother of Isaac, Lib. I. (Cap. IX.) See other Examples in Otho Frisingens. and the Poet Gunther, in Ligurin.Grotius.

[3. ]During the Siege of Cirrha or Crissa, a City of Phocis, Solon advised the Amphictyones to turn off the River Plithus, which ran through the City; after which he caused the Roots of Hellebore to be thrown into it, and then ordered the Waters to be brought into their ancient Channel. The People of Cirrha, having drank of them, were seized immediately with a Diarrhoea, which obliged them to leave their Walls undefended, so that the Place was taken. This Pausanias relates, whom our Author quotes in the Margin, Lib. X. or Phocic. Cap. XXXVII. p. 356. Edit. Graec. Wechel. See also Polyen. Strategem. Lib. VI. Cap. XIII. Our Author quotes also in the Margin, besides Frontinus, Strateg. Lib. III. Cap. VII. Num. 6. the Orator Aeschynes, Orat. de male obita Legat. The Passage he had in his Thoughts, was probably the Article of the Oath of the Greeks, by which they engaged not to destroy any City, that sent Members to the Council of the Amphictyones, and not to deprive them of the Use of any running Water, either in Time of Peace or War; which implies, that otherwise it might be done against an Enemy. p. 262. A. Edit. Basil. 1572.

[a ]Frontin. l. 3.

[b ]Priscus. in Excerp. legat.

[1 ]This is related after Albericus Gentilis, De Jure Belli, Lib. II. Cap. VIII. p. 274. who cites Bonfinius, Rerum Hungar. I. 8. in the Margin.

[2. ]Lib. V. Cap. LXXXI.

[a ]Warnefrid, l. 6.

[3. ]He wished to have such brave Men on his Side, Juberem macte virtute esse, si pro mea patria ista virtus staret.Livy, Lib. II. Cap. XII. Num. 14.

[4. ]Caeterum inter molitionem pii pariter ac fortis propositi oppressus, &c. Lib. III. Cap. III. Num. 1. Plutarch praises this Scaevola, as a Man distinguished by all Virtues, and especially by his Skill in military Affairs. (Vit. Poplicol. p. 106. B. Vol. I. Edit. Wech.) Grotius.

[5. ]Mortem — ego vir consularis, tantis rebus gestis, timerem? Praesertim cum ejus essem civitatis, ex qua Q. Mutius solus in castra Porsennae venisset, eumque interficere, proposita sibi morte, conatus esset? Orat. pro P. Sextia, Cap. XXI.

[b ]Justin, l. 2.

[* ]The Emperor Valens promised a Reward to whoever brought him the Head of a Scythian, upon which they made Peace with him; as Zosimus tells us, Lib. IV. (Cap. XXII. Edit. Cellar.) Grotius.

This is not very exactly related. See the Passage in Zosimus.

[c ]Livy, l. 27.

[d ]Tac. Hist. l. 5.

[6. ]Offic. Lib. I. Cap. XL. And Josephus, Antiq. Hist. XV. There is a like Action of Theodosius against Eugonius, in Zosimus, B. IV. of the Gauls against the King of Persia, in Agathias; of ten Persians against Julian, in Ammianus, XXIV. and Zosimus III. of Alexius Comnenus against Toruses, in Nicetas Choniatas, B. IV. De Manuele; of the Bulgarians against the Emperor Nicephorus, in Zonaras, (Vol. III. in Nicephor.) Grotius.

It is not Alexius Comnenus, but Andronicus, that Nicetas Choniates speaks of. The Fact is in Chapter IV. of the Book referred to.

[e ]Livy, l. 2.

[7. ]De Bell. Punic. (p. 33. Edit. Amstel. 2. H. Steph.)

[f ]See Cromer. Rer. Polon. l. 5. p. 113. Edit. Basil.

[8. ]This is a Verse from Plautus’s Trinumm. Act. IV. Scen. III. ver. 30.

[9. ]Upon a different Subject; for he speaks of those that by false Hopes deceive an avaritious Person, who wanted to get their Estates. Alii contra hoc ipsum laudibus ferunt, quod sit frustratus improbas spes hominum; quos sic decipere, pro moribus temporum, prudentia est. Epist. VIII. Num. 3.

[10. ]Ziegler accuses our Author here of contradicting himself, and what he had advanced above; at the End of the first Chapter of this Book, § 21, 22. And it must be confessed from the Manner in which our Author expresses himself in this Place, that he seems to give Room to think, either that it is always unlawful by natural Right to make use of a Traitor, for obtaining some Advantage, or committing some Act of Hostility against an Enemy; which is contrary to the Distinction he makes in the Place referred to; or that the Law of Nations, of which he speaks, as forbidding the Assassination of an Enemy by the Hand of a Traitor, regards only those who have sollicited him to Treason, and not those who have taken the Advantage of the Traitor’s Disposition, who voluntarily offered himself, which would be unwarrantable; for those Nations who have held the former unlawful, have also condemned the latter. However I do not think our Author has either changed his Opinion, in Regard to his Distinction, upon which he reasons again elsewhere, or that he intended to restrain the Rule of his arbitrary Law of Nations. But here an Inaccuracy of Expression has slipt from him, which he has overlooked, I know not how, even in his Revisals of this Work. Wherefore when he says in this Place, that We sin against GOD, and violate the Law of Nature, when we make use of wicked Instruments against an Enemy, and employ the Arm of a Traytor to dispatch him; this should be understood according to the Distinction I have mentioned, of those only who themselves seek for such Means, and sollicit Persons to commit Treason, that, perhaps, would never have entertained such a Design, without the Allurement of the Rewards promised, or even given them beforehand. As to the Thing itself, this in my Opinion may be said, I. There are two Points to be distinguished: The one, whether the Enemy himself be wronged, against whom the Traitors are used: The other, whether, tho’ he be not wronged, something bad however be committed. It seems to me, that admitting the War to be just, no Wrong is done the Enemy, whether we take Advantage of the Opportunity of a Traitor, who freely offers himself, or whether we seek for it, and bring it about ourselves. The State of War into which the Enemy has put himself, and which it was in his own Power to prevent, permits of itself all Methods to be used against him; so that he has no Room to complain, whatever is done. Besides, we are no more obliged to regard the Right he has over his Subjects, and the Fidelity they owe him as such, than their Lives and Fortunes, of which we may deprive them by the Right of War. II. I believe, however, that a Sovereign who has the least Tenderness of Conscience, and is convinced of the Justice of his Cause, will not endeavour to find out treasonable Methods, in order to subdue his Enemy, nor eagerly embrace such as may offer of themselves to him. The just Confidence which he may have in the Protection of Heaven; his Horror for the Traitor’s Perfidy; the Fear of making himself an Accomplice of it, and of setting a bad Example, which may fall again upon himself and others, who have not deserved it; will make him either despise, or not accept without Regret, every Advantage he might propose to himself from such a Means. III. This Means cannot even be considered as a Thing of which the Use is always innocent, in Regard to the Person who employs it. The State of Hostility, which dispenses with the Commerce of good Offices, and authorises to hurt, does not therefore dissolve all Ties of Humanity, nor remove our Obligation to avoid as much as possible, the giving Room for some bad Action of the Enemy, or his People, especially those who of themselves have had no Part in the Occasion of the War. Now every Traitor undeniably commits an Action equally in famous and criminal. For it is absurd to think, as the late Mr. Titius has ventured to do, (Observat. inPufendorf, DCCI.) with a perhaps; that admitting the War to be just on the other Side, he who betrays his Prince, does not commit a real Act of Perfidy; because, for Instance, the Party in whose Favour he assassinates him, had a Right to kill him. This, I say, is unwarrantable; for a Subject indeed ought not to serve his Prince in a War manifestly unjust; but he is not therefore authorised to side with the Enemy; and the Injustice of a Prince towards Strangers, does not discharge his Subjects from the Fidelity they owe him. So that I believe, with our Author, we can never, in Conscience, seduce, or solicit, the Subjects of an Enemy to commit Treason; because that is actually and directly inciting them to commit an abominable Crime, to which, otherwise, they might never have proceeded of themselves. IV. The Case is different when we only take Advantage of the Occasion, and the Dispositions we see in a Person, who did not want soliciting to commit Treason. Here the Infamy of the Treachery does not rebound upon him who finds it entirely formed in the Heart of the Traitor. This Traitor, from the Moment he conceives within himself the Design of committing Treason, may be deemed to be as criminal as when he has actually committed it.

• Nam scelus intra se tacitum qui cogitat ullum,
• Facti crimen habet ——

This Maxim would not be well applied in other Respects, I confess; but that is because, excepting these Cases between Enemies, there is none, in my Opinion, where the Thing, in Regard to which we make our Advantage of the bad Dispositions of others, can be of such a Nature, that we may lawfully and innocently do it ourselves. Upon the Whole, for the Reasons alledged, we ought not to take Advantage of a Treason which offers itself, unless it be to obtain some considerable Advantage, or to avoid some great Danger; in a Word, from a Kind of Necessity. V. What I have said, regards the Law of Nature; in Respect to the Law of Nations, of which our Author speaks, and which, at Bottom, is no more than the Custom of several Nations, tho’ that Custom has nothing obligatory of itself, yet, if the People with whom we are at Variance, look upon the very Acceptance of the Offers of a certain Sort of Perfidy as unlawful, as to assassinate, for Instance, one’s Prince or General, we tacitly submit to it, in the Manner, and for the Reasons, mentioned above, § 15. Note 1.

[11. ]Impia enim bella suscipitis, &, quum habeatis arma, licitamini hostium capita.Quintus Curtius, Lib. IV. Cap. I. Num. 12.

[12. ]Utpote qui ne belli quidem in me jura servaveris. Ibid. Num. 13.

[13. ]Veram enimvero, quum modo milites meos literis ad proditionem, modo amicos, &c. Lib. IV. Cap. XI. Num. 18.

[14. ]The Passage has been quoted before, § 15. Note 3.

[15. ]Ea omnia quam Diis invisa essent, sensurum in exitu rerum suarum.Livy, Lib. XLIV. Cap. I. Num. 11.

[16. ]Viriatietiam caedes, &c. Lib. IX. Cap. VI. Num. 4. The Author De Viris illustribus, [who is believed to be Aurelius Victor] says, that the Senate did not approve this Victory, because it had been bought, Quae victoria, quia emta erat, a Senatu non probata. Cap. LXXI. in fin. According to Eutropius, the Murderers of Viriatus having demanded a Reward of the Consul, he answered them, that the Romans had never approved the Conduct of Soldiers who killed their General. Quum interfectores ejus praemium a Caepione Consule peterent, responsum est, numquam Romanis placuisse, Imperatorem a suis militibus interfice. (Lib. IV. Cap. VIII. Edit. Cellar.) There seems to be Reason for supplying a Word in this Passage, à Caepione Consule promissum. Ammianus Marcellinus disapproves also the Assassination of Sertorius, committed at a Feast by Perperna, his Lieutenant. Lib. XXX. (Cap. I. in fin.) Grotius.

It does not appear from other Authors, that the Consul Caepio had promised a Reward to those who killed Viriatus. So that the Text of Eutropius is not faulty.

[17. ]And indeed Traitors seldom offer their Service, or are applied to, but to assassinate Persons of a high Rank, as Princes or Generals.

[18. ]Nec Antigonium, nec quemquam ducum, sic velle vincere, ut ipse in se exemplum pessimum statuar. Lib. XIV. Cap. I. Num. 12.

[19. ]Our Author cites Justin again here, Lib. XII. Apud eumdem, says he in the Text; tho’ he had mentioned him before only in the Margin. In the first Edition he had said, ApudCurtium. This was from his finding afterwards in Justin the following Words, Reputans [Alexander] non tam hostem suum fuisse Darium, quam amicum ejus, a quo esset occisus. Cap. I. Num. 11. But he had Reason to cite Quintus Curtius, who has something more express upon this Subject. Quem quidem [Bessum] cruci adfixum videre festino, omnibus regibus Gentibusque fidei, quam violavit, meritaspoenas solventem. Lib. VI. Cap. III. Num. 14.

[20. ]Oedip. ver. 139.

[21. ]Oedip. ver. 242.

[22. ]This Passage has been quoted above, § 15. of this Chapter, Note 6.

[23. ]Nec irritae, aut degeneres, insidiae fuere adversus transfugam & violatorem fidei. Annal. Lib. XI. Cap. XIX. Num. 2. Ammianus Marcellinus, speaking of Florentius and Barchalba, who had seized and brought the Rebel Procopius to the Emperor Valens, and were killed at the same Time, observes upon it, that if they had betrayed a lawful Prince, Justice itself would have passed Sentence of Death upon them; but that having betrayed a Rebel, and a Disturber of the publick Tranquillity, as Procopius was according to the general Opinion, so memorable an Action ought to have been amply rewarded. Parique indignationis impetu Florentius, &c. (Lib. XXVI. Cap. IX. in fin. p. 513. Edit. Vales. Gron.) The Historian Procopius, for the same Reason praises Artabanus for having killed Gontharides, Vandalic. Lib. II. in fin. (Cap. XXVIII.) See also Cromer, Rer. Polon. Lib. XXVIII. concerning the Murther of Suchodolius, (p. 604. Edit. Basil.) Grotius.

[24. ]Quae [perfidia] tamen jam minus, &c. Lib. VII. Cap. V. Num. 20.

[1 ]Gesset curam pudicitiae, etiam in hoste, servandae.Austin, De Civit. Dei, Lib. I. Cap. VI. [See Livy, Lib. XXV. Cap. XXV. Num. 7.] The same Thing is related of Lucullus, in Dion Cassius, (Lib. XXXV. p. 2. A. Edit. H. Steph.) See the Edict of Gabao, King of the Moors, in Procopius, Vandalic. Lib. I. (Cap. VIII.) Grotius.

[2. ]Meae, Populique Romani, disciplinae, caussâ, &c.Livy, Lib. XXVI. Cap. XLIX. Num. 14.

[3. ]Lib. XIX. Cap. VIII. p. 674. Edit. H. Steph.Appianus Alexandrinus treats this as the Act of Barbarians, in speaking of the People of Chios, who were exposed to it by the Troops of Mithridates. Bell. Mithridatic. p. 340. Edit. Amstel. (201. H. Steph.) Grotius.

[4. ]Var. Hist. Lib. VI. Cap. I.

[5. ]Belisarius always observed it, and so did Totilas, at the taking of Cumae and Rome.Procopius, Goth. III. Grotius.

What our Author says here of the usual Conduct of the Roman General, is related in Chap. I. of the Book referred to, and in the twentieth Chapter we see the Care which the King of the Goths took, to prevent any Violence being done to the Wives, Maids, or Widows, when he made himself Master of Rome. As to what regards the taking of Cumae, I find nothing upon it; and it is likely, that our Author, citing by Memory, has put Cumae for Naples, for it was after taking of the latter, that Totilas condemned one of his Guards to die, for having ravished the Daughter of a Roman, a Native of Calabria; upon which that Prince made a fine Speech to those who came to intercede for the Criminal. Chap. VIII.

[6. ]Philo much commends that Law, in his Book, περὶ ϕιλανθρωπίας : And Josephus against Appion. The Law also takes Care of Prisoners of War, to preserve them from Reproach, especially Women. Lib. II. p. 1075. D. Grotius.

[7. ]He, says he, praises rather than blames it: De Expedit. Alexandr. Lib. IV. Cap. XIX. Edit. Gron.

[8. ]De Fortuna vel virtut. Alexandr. Orat. II. p. 332. E. Vol. II. Edit. Wech.

[9. ]Cosroes, King of Persia, crucified one for ravishing a Virgin at Apamea,Procopius, Persic. Lib. II. Chap. XI. Grotius.