Front Page Titles (by Subject) CHAPTER XIX: Concerning Faith between Enemies. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER XIX: Concerning Faith between Enemies. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 3 (Book III) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 3.
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Concerning Faith between Enemies.
I.Faith is to be kept with all Sorts of Enemies.I. 1. We have alreadya said, what, and how much may be lawfully done in War, [[this† either considered simply in itself, or with regard to a foregoing Promise. The first Part being concluded, the other remains to be discussed, which is, concerning Faith (to be kept) between Enemies. It is a remarkable Saying of Silius Italicus, who had been a Roman Consul,
The most excellent Warrior is he who has nothing so much at Heart, as the punctual Observance of his Word to an Enemy.<687>]]
Xenophon2 in his Oration concerning Agesilaus, says, So great and noble a Thing it is for every Man, but especially for Generals to be strict Observers of their Faith, and to be so accounted. And Aristides3 in his fourth Leuctrica. It is in Treaties of Peace and other publick Conventions, that we chiefly know whether those that make them love Justice. For as Cicero4 well observed in his fifth Book of Bounds, There is no Body, but approves and commends that Disposition of Mind, by which not only no Interest is sought, but on the contrary Faith is kept against Interest.
2. It is the publick Faith, as it is in Quintilian the Father,5 that procures a Truce between armed Enemies, and preserves the Rights of yielded Cities. And the same Author in another Place:6Faith is the surest Bond of human Things, the Reputation of Faith is sacred among Enemies. And so St.7Ambrose: It is plain that Faith and Justice must be strictly observed in War. And in St. Augustine,8When our Faith is engaged, it must be kept even to our Enemy, tho’ at that Time at War with him. For their being Enemies, does not make them cease to be Men. And all Men arrived at the Years of Discretion are capable of a Right from a Promise. Camillus declares in Livy,9That he had such a Society with the Falisci, as was established by Nature.
3. From this Society founded on Reason and Speech, arises that Obligation from a Promise, which we now treat of. And we are not to imagine that, because it is permitted to tell a Falshood to an Enemy, or because, according to the Opinion of several, there is no Harm in it, as we have observedb elsewhere; we may extend such a Permission to the very Words we use in treating with the Enemy. For the Obligation to speak Truth arises from a Cause, prior to War, and perhaps may be in some Measure annihilated by War, but a Promise of itself confers new Right. Aristotle10 perceived this Difference, when treating of Veracity, he said, I do not speak of him, who says the Truth in the Conventions he makes, nor what relates to Justice or Injustice; for these Things belong to another Virtue.
4. Pausanias11 said of Philip of Macedon, No Body can justly call him a good General, who has always despised his most solemn Oaths, and has upon the slightest Pretence broke his Faith, the most of any Man. And the like says Valerius Maximus of Hannibal.12A profest Enemy to the Romans, and all Italy, and a greater to Faith itself, glorying in Lies and Falshood, as if laudable Virtues; whence it came to pass, that whereas he might otherwise have left an illustrious Memory of himself, he now left it disputable, whether he ought to be considered as a great Man, or a notorious Villain. In Homer, the Trojans pricked in Conscience condemn themselves.
II.The Opinion refuted, that Faith is not to be kept with Pirates and Tyrants.II. 1. We have already said, that we may not allow of that of Cicero,1There is no Society with Tyrants, but rather the greatest Division: And again, A Pirate is not of the Number of those with whom we make War in form; there ought to be no Faith nor Oath kept with him. Nor that of Seneca2 concerning a Tyrant, Whatever Engagements I had with him, they are all void, because he has violated the Laws of human Society. From which Fountain arose that Error of Michael of Ephesus, who says on the fifth of the Nicomachia,3It is no Adultery to debauch the Wife of a Tyrant. Which very Thinga some of the Jewish Doctors erroneously maintained concerning Strangers, whose Marriages they esteemed void.
2.4 Yet Cn. Pompey finished most of the piratick War by Treaties, agreeing to save the Men’s Lives, and allow them a Place where they might live without robbing. And sometimes Tyrants have restored Liberty on Condition of Impunity. Caesar in his third of the Civil War writes, that the Roman Generals compounded with the Robbers, and Fugitives, that were in the Pyrenean Mountains. Now who can say that such a Composition is not obligatory?5 Indeed such Sort of People have not with others that particular Community, which the Law of Nations hath introduced between Enemies engaged in a solemn and compleate War. But yet, as Men, they are to enjoy the common Benefits of the Law of Nature, as Porphyry6 rightly argues in his third Book of not eating living Creatures; now it is one of the most inviolable Laws of Nature, that we should perform what we promise. So Diodorusb relates, that Lucullus kept his Faith to Apollonius Captain of the Fugitives. Thus Dio writes, that Augustus paid to Crocota the Robber, who surrendered himself, the Price he had set upon his Head, because he would not break his Word.
III.This Objection answered, that such deserve Punishment, and it is shown that this is not considered, when we treat with them as such.III. 1. But let us see if we cannot produce something more plausible than what Cicero has said; and first, they who are notoriously wicked, and Members of no civil Society, may be punished by any Man, according to the Law of Nature, as we havea declared above. But they who may be punished, even with Death, both their Goods, and their Rights may be taken from them. As the same Cicero well observes,1It is not against Nature to strip him, if we can, whom it is lawful to kill. But among his other Rights, is also a Right derived from Promise, and therefore this too may be taken away from him by way of Punishment. To this I answer, that the Reason would be good, if we had not treated with him as an Offender; but if we treat with him as such, it is to be understood, as if we in that Respect, remitted the Punishment, because, (as we have saidb elsewhere) we are [[not† to explain the Sense of a Convention, so as that it may be reduced to nothing.]]
2. Nabis replied well in Livy, when Quintius Flaminius objected Tyranny to him.2Whatever Name is given, and whatsoever I am, just the same I was, when<689> you yourself (O T. Quintius) made a Treaty with me. And again, I had done these Things already, whatsoever they are, when you contracted an Alliance with me; to which he adds, If I had changed, Iought to give an account of my Inconstancy; but since you have changed, you ought to give an account of yours. Like to this there is a Place in the Oration of Pericles, recorded by Thucydides, We shall let those Cities remain free, which were so when we made an Alliance with them.
IV.No Objection, that the Promise was extorted by Fear, if the Promiser was not himself affrighted.IV. That may likewise be objected, which I saida before, that he who through Fear has forced a Promise from one, ought in Equity to release the Promiser, because he damnified him by Injustice, that is, by an Act both repugnant to the Nature of human Liberty, and to the Nature of the Act extorted, which should have been free. Tho’ this (I confess) in some Cases holds true, yet it does not respect all Promises made to Robbers; for that the Promised be obliged to disengage the Promiser, it is required, that he have extorted the Promise by an unjust Fear. If any one then, to deliver his Friend out of the Hands of Robbers who have taken him, shall promise to pay a certain Sum of Money, he is bound to do it,1 because he cannot pretend to have been influenced by Fear, who came voluntarily to make this Contract.
V.Or if there passed an Oath, tho’ with Men, such a Violation is not punishable.V. Add to this, that he that is compelled by an unjust Fear to make a Promise, may be obliged to perform it, if he has confirmed it by an Oath, for thereby (as I have saida before) the Man stands bound not only to a Man,1 but unto GOD, in regard to whom Fear can be no Exception. Yet it is true, that the Heir of the Promiser does not stand engaged by such a Bond alone;2 for those Things only pass to the Heir, which by the original Establishment of the Right of Property, enter into the Commerce of Life: But the Right acquired unto GOD by an Oath, cannot as such be included in these. Again, as we have likewise observed elsewhere, if a Man does happen to break his Faith to a Robber, whether sworn, or not sworn, he shall not upon that Account be liable to Punishment among other Nations; because in Detestation to Thieves and Robbers, all Nations by a general Consent are pleased to connive at any Thing (even tho’ ill) done against them.
VI.The same applied to the Wars of a Sovereign against his Subjects.VI. What shall we say of the Wars1 that Subjects make against their Kings, or such as have the supreme Authority? Tho’ they may possibly have a Cause not in itself unjust,2 yet that they cannot have a Right to act by Force against their Prince, I have sheweda elsewhere. But sometimes their Cause may be so very unjust, or their Resistance so criminal, that it may deserve a rigorous Punishment. Yet, if they be treated with as Deserters, or Rebels,3 and a Promise made to them; a Punishment, tho’ justly due, is not to be pleaded to prevent the Performance of that Promise, according to what we have now said. Faith is to be kept even with Slaves; and the Morality of Pagan Antiquity was so pure, as to own† the Truth of that Maxim: It being generally believed, that the Lacedemonians suffered a Divine Vengeance4 for putting to Death some Taenarian Slaves, contrary to their Covenants. And Diodorus Siculus observes, serves, that the Faith given to Slaves in the Temple5 of the Palician Gods, was never broken by any of their Masters: Neither will any Exception of Fear be allowed in this Case, if the Faith given be confirmed by an Oath.<690> As M. Pomponius,6 the Tribune of the People, being bound by an Oath, tho’ compelled by Fear, punctually performed what he had promised to L. Manlius.
VII.A special Difficulty concerning Promises made to Subjects in respect of the Sovereign Power handled.VII. But a greater Difficulty than any yet mentioned may arise from the Legislative Power, and from that super-eminent Right over the Goods of the Subjects, with which the State is invested, and which the Sovereign exercises in its Name. For that Right, if it reach to all the Goods of the Subjects, why not then to that Right also derived from a Promise made in War? Which if granted, all such Covenants seem to be void, and so all Hopes of concluding a War, but by a compleat Victory, would be lost. But on the contrary we must observe, that this super-eminent Right is not to be promiscuously used, but only so far as the publick Good requires it in a civil Government, which, tho’ monarchical and absolute, is not despotical. Now, this general Interest commonly requires, that such Agreements should be performed: Agreeable hereunto is what we have alreadya said of the Obligation of maintaining the present State of the Government. Add hereunto, where Necessity requires this eminent Right to be used, Satisfaction is to be made, as hereafterb shall be more fully explained.
VIII.And it is shewn that such Promises may be confirmed by the Oath of the State.VIII. 1. Moreover Agreements may be confirmed by Oath,1 not only by King, or Senate, but by the whole Body politick; as Lycurgus bound the Lacedemonians, and Solon the Athenians by Oath to observe their Laws: And lest by the Change of the Persons the Oath should lose its Force,2 to renew the same Oath every Year. In that Case, there would be no receding from the Engagement, not even for the publick Advantage. For a State has Power to part with its own Right, and the Terms of the Treaty may be so plain, as to admit of no Exception. Valerius Maximus thus speaks to the City of Athens,3Read the Law which you have sworn to observe. The Romansa called such Laws sacred, which they were obliged to keep by Oath, as Cicero4 says in his Oration for Balbus.<691>
2. There is in the third Book of Livy5 a Passage agreeable to this, tho’ of itself pretty obscure; where from the Opinion of several antient Lawyers, he declares, that the Tribunes of the People were sacred: But so were not the Aediles, Judges, nor Decemviri, and yet to hurt any of these was contrary to the Laws. The Reason of the Difference is, because the Aediles and the rest had no other Protection than that of the Law, that is, an Ordinance of the People, which could not be lawfully contravened, whilst it subsisted, but might be revoked by another posterior to it. Whereas the Inviolableness of the Tribunes was founded on the publick Religion, having been established by an Oath, which could not be revoked even by those who had sworn. Dionysius Halicarnassensis thus records it in his sixth Book:6Brutus, calling an Assembly, proposed to the People, that the Tribunes might be rendred sacred and inviolable, not only by the Law, but also by a publick Oath, to which they all agreed. Hence this Law was called Sacred. And therefore7 that Fact of Tiberius Gracchus, in deposing Octavius from the Tribuneship, pretending that the Tribune’s Power derived its Inviolableness from the People, but that this Privilege could not take Place in regard to the People themselves, was condemned by all good Men. Therefore (as I have said) both a State and a King may be bound by an Oath made to their own Subjects.
IX.Or if a Promise be made to a third Person.IX. But farther, a Promise1 made to a third Person, who has done nothing to extort it, shall be of full Force. But we shall not examine, wherein and how far that third Person may stand interested in it, being one of the Niceties2 of the Roman Law. For by Nature it is the Interest of all Men to consult the Advantage of others. Thus we read,3That Philip having made Peace with the Romans, was denied the Power of treating the Macedonians ill, that in the War had revolted from him.
X.How the publick State may be changed.X. Moreover, as we havea already proved that mixt Governments sometimes exist, as a State may pass from one pure Form into another, so it may also by Covenant, or Agreement, pass into a mixt. So that they who before were Subjects, may become Sovereigns, or at least acquire a Part of the Sovereignty with the Right of defending it by force of Arms.
XI.That Fear in a solemn War by the Law of Nations is no just Exception.XI. 1. But a solemn War, that is, publick, and denounced on both Sides, among other particular Effects of external Right, has also this, that whatever Promises are made in that War, or for bringing it to a Conclusion, are so valid, that tho’ they were occasioned by1 a Fear unjustly caused, yet they cannot be made void without the Consent of him to whom the Promise was made. Because as many other<692> Things, tho’ in themselves not wholly innocent, are yet by the Law of Nations reputed just, so is Fear,a which in such a War is occasioned on either Side; for if it were not allowed, such Wars, that are but too frequent, could be neither moderated, nor concluded, which yet are very necessary to be done for the good of Mankind. And this we may reasonably suppose to be that Right of War, which2Cicero says, must be kept with the Enemy; who also tells us in another Place,3 that an Enemy retained some Rights in War, that is, not only natural ones, but also some derived from the Consent of Nations.
2. Neither does it from hence follow, that he who has extorted such a Thing in an unjust War, may with a safe Conscience, keep what he has got, or compel the other Party to stand to his Covenants, whether sworn or not sworn. For internally, and in the very Nature of the Thing, it still continues unjust: Neither can this internal Injustice of the Act be taken away, but by a new and entirely free Consent of the Promiser.
XII.What is to be understood by such a Fear as is allowed by the Law of Nations.XII. Further, whereas I have said that Fear is accounted just, which is caused in a solemn War,1 it is to be understood of such a Fear as the Law of Nations allows of. For Instance, if any Thing be extorted thro’ the fear of Ravishment, or any other Terror, contrary to our Faith given, this ought to be adjudged by the Law of Nature, because the Law of Nations does not extend so far as to authorise any such Fear.
XIII.That Faith is to be kept even with the Perfidious.XIII. 1. That Faith is to be kept even with those that are perfidious, I have already said,a in treating of the Obligation of Promises in general; and it is likewise the Doctrine of1 St. Ambrose: Which doubtless extends to Enemies that are treacherous; such as the Carthaginians, with whom nevertheless the Romans inviolably kept their Faith. Valerius Maximus says on this Subject,2The Senate regarded themselves, not those to whom they performed their Engagements. And likewise Salust,3In all the Punic Wars, tho’ the Carthaginians in Time of Peace, and of Truce, were often guilty of most villanous Practices, yet they (the Romans) never returned the like to them, when they had an Opportunity.
2. Appian speaking of Servilius Galba, who put the Lusitanians to the Sword for breaking their Alliance, after having deceived them in his Turn by a new Treaty, observes,4He avenged one Treachery by another, and to the Scandal of the Romans, imitated the Barbarians. The same Galba was afterwards accused for it by Libo, a<693> Tribune of the People; which Valerius Maximus5 relating, thus censures it: Compassion, not Equity, pleaded in that Cause; for the Absolution, which his own Innocency could not demand, was granted him in respect of his Children. And Cato6 writes in his Originals, he would certainly have suffered, if his Children and Tears had not interceded for him.
XIV.Not if the Condition ceases, which happens when the other Party refuses to stand to his Part of the Agreement.XIV. But we must also observe, that there are two Ways, where by to avoid the Crime of Perfidiousness, and yet not perform the Promise; namely, in Default of the Condition, or by Compensation. The Promiser is not properly discharged for Want of the Condition; but the Event shews, that there had been no real Obligation, since he did not intend to engage himself but upon Condition. To which we may refer this,1 if the other do not perform what he was bound on his Part to do first. For all the Articles of one and the same Agreement seem to be included one in the other, in the Manner of a Condition, as if it had been thus expressed, I will do these Things thus; provided the other also do what he has promised. Therefore Tullus,2 in his Answer to the Albans, calls the Gods to witness, [[which†of the two Nations had scornfully sent back the Embassadors reclaiming their own, that all the Miseries of War might light upon them. Ulpian observes,3He shall not be held a Confederate, who has renounced his League, because some Condition, on which it was made, is not performed. For which Reason, when it is otherwise designed, this express Clause is usually added, if any Thing be done contrary to this or that Article, yet shall the rest be in full Force.]]
XV.Neither when there is a just Compensation opposed.XV. We have elsewherea declared the Original of Compensation, that is,1 when we cannot otherwise recover what is our own, or what is justly due to us, we may take from him, who either keeps what is ours, or is indebted to us, the full Value thereof in any Thing else; whence it follows, that we may much more keep what is actually in our Possession, whether corporeal or incorporeal. Whatever therefore we have promised, we need not perform, if it be of no greater Value than that of ours, which the other Part injuriously detains from us.2Seneca says in his sixth Book of Benefits, Thus the Creditor is often cast by the Debtor, when he has upon some other Account taken more than the Value of his Debt. Nor does the Judge only sit between the Creditor and the Debtor, who may say to the Plaintiff, You lent your Money. What then? You now possess Land, which you never purchased, wherefore upon a just Valuation, depart you hence a Debtor, who came a Creditor.
XVI.Tho’ by another Contract.XVI. It will be the same Case, if he with whom I deal owes me as much, or more, upon any other Contract, and I cannot otherwise recover it. Indeed in Courts of Justice, Seneca1 says, certain respective Actions of the Parties are not granted at the same Time; but this is a pure Effect of the Disposition of the civil Laws, to which we are bound to conform. Each Law has its Rights apart, which it has been thought proper not to mingle with those of other Laws; as the same2 Author observes. But the Law of Nations allows no such Distinctions, provided there be no other Hopes of recovering our own.
XVII.Or some Damage done.XVII. The same may be said, where he that exacts a Promise, owes nothing in Consequence of an Agreement, but hath damnified the Promiser.1 As the same Seneca testifies, The Farmer is not bound to his Landlord, tho’ his Lease be not can-<694> celled, in Case he wilfully tramples down his Corn, or cuts down his Trees; not because he has received what he agreed for, but because he has prevented his Tenant’s receiving whereby he might pay him. Then he gives other Instances.2You have driven away his Cattle, you have killed his Slave.3 And again, It is lawful for me to compare the good that a Man has done me, with the Hurt he does me, and then declare, whether I am more indebted to him, or he to me.
XVIII.Or for some Punishment due.XVIII. Lastly, whatsoever is also due by way of Punishment, may be balanced against the Thing promised. Which in the same Place of Seneca is at large explained.1Thanks is due for a Kindness, and Revenge for an Injury. I neither owe him Thanks nor he Punishment to me, we are fully discharged one of another. And again,2By comparing the Benefits and Wrongs which I have received, I shall find whether there does not remain something due to me.
XIX.How these take Place in War.XIX. 1. But as amongst contending Parties at Law, if they have made any Agreement whilst the Suit is depending, none of them can compensate what he has promised, either by the Thing contended for, or the Costs and Damages of the Suit: So during the Continuance of the War, neither can that which first occasioned the War, nor the Damages allowed by the Law of Nations in War, be compensated. For the very Nature of the Engagement, which without that would be reduced to nothing, sheweth, that all the Disputes of War were set aside: Otherwise there could be no Agreement made so firm that might not be evaded. Whereto I may properly apply that Saying,1 of the same Seneca, whom I have cited so often, Our Ancestors would allow of no Excuses, that Men might be assured that Faith was strictly to be kept. For it were better not to admit of an Excuse, tho’ just, from a few, than encourage every one to make them.
2. But what is it then that may be compensated by the Thing promised? That which is due to us by any other Convention made during the War; or on account of the Damage done us by Acts of Hostility in the Time of Truce; or in Consequence of an Outrage committed on our Embassadors, or any other Action condemned by the Law of Nations.
3. But we must observe, that this Compensation be made between the same Persons, and that the Right of no third Person be injured; yet so that the Subjects Goods must stand engaged for the Debts of their own State by the Law of Nations, as I have saida elsewhere.
4. To which we may add, it is the Part of a generous Soul to keep firm to his Treaties, even after Injuries received; on which Account that wise Indian, Jarchas,2 highly commended the King, who being injured by a confederated Neighbour, Would not break his Faith given, saying, That he had sworn so solemnly, that he durst not hurt the other, no not after great Provocation.
5. Now what Questions use to arise concerning Faith given to Enemies, may almost all of them be resolved, by the Rules we have establishedb above in treating of the Effect of Promises in general, and of the Oath that accompanies them in particular, of Alliances and publick Treaties, as also of the Right and Obligation of Kings, and the Interpretation of obscure or ambiguous Clauses. Yet that the Use of the Principles we have laid down may be better perceived, and to clear any Doubt that may arise hereafter, I shall not think much to point out some of those special Cases which are most remarkable, and most frequently occur.<695>
[a ]B. 3. Ch. 1. §1.
[† ][[The original text simply reads “is,” which is clearly a misprint. I have emended it in line with the passage referred to in the marginal note.]]
[1 ]Punic. Lib. XIV. (Ver. 169. & seq.) The Philosopher Archelaus, as Appianus Alexandrinus relates, said, that Treaties solemnly made and sworn, ought to be sacred and inviolable, even between Enemies. Bell. Civil. Lib. IV. (p. 628. Edit. H. Steph.) Grotius.
[2. ]Cap. III. § 5. Edit. Oxon.
[3. ]P. 184. C. Vol. II.
[4. ]Nemo est igitur, qui non hanc, &c. De finib. bon. & mal. Lib. V. Cap. XXII.
[5. ]Ego publicam adpello fidem, quae inter Piratas sacra est: Quae inter armatos hostes inducias facit: Quae deditarum civitatum jura conservat. Declam. CCXLVII. in fin. p. 505. Edit. Burman.
[6. ]Fides supremum rerum humanarum vinculum est: Sacra laus fidei inter hostes. Declam. CCCXLIII. p. 721.
[7. ]Liquet igitur, etiam in bello fidem & justitiam servari oportere. De Offic. Lib. II. Cap. XXIX.
[8. ]Fides enim quando promittitur, etiam hosti servandum est, contra quem bellum geritur. Epist. CCV. Ad Bonifac. This Father treats the same Subject at large in Letter CCXXV. Grotius.
[9. ]Nobis cum Faliscis, quae pacto fit humano, societas non est: Quam ingeneravit natura, utrisque est, eritque.Livy, Lib. V. Cap. XXVII. Num. 6. See what I have said upon Pufendorf, Law of Nature and Nations, B. VIII. Chap. VII. § 2.
[b ]B. 3. Ch. 1. § 17.
[10. ]Ethic. Nicomach. Lib. IV. Cap. XIII. See what I have said upon the Preliminary Discourse, § 44. Note 4.
[11. ]In Arcadic. Cap. VII. p. 241. Edit. Wech.
[12. ]Nonne bellum adversus, &c. (Lib. IX. Cap. VI. Num. 2. Extern.)
[13. ]The Passage of Homer cited here is not exactly repeated. The Author trusting without doubt to his Memory, has said, καλλιόν ἐστι, where he finishes the Sense, but in the Original there is:
That is to say: I believe our Affairs will not prosper, if we do not this, or if we do not restore Helena to the Greeks, with all her Riches. In which the Sense is finer, and conveys another important Reflection to dissuade from Perfidy.
[1 ]See Pufendorf upon this Subject, Law of Nature and Nations, B. III. Chap. VI. § 9. and 11. and B. IV. Chap. II. § 8. The Passages of Cicero are quoted in B. II. Chap. XIII. § 15.
[2. ]Quidquid erat, quo mihi cohaereret, intercisa juris humani Societas abscidit. De Benefic. Lib. VII. Cap. XIX.
[3. ]Seneca the Father says also, Non putavi adulterium, uxorem Tyranni polluere, sicut nec homicidium, Tyrannum occidere. Excerpt. Controvers. Lib. IV. Cap. VII. The Lawyer Julius Clarus believed, that Adultery might be committed with Impunity with a banished Woman. In § Homicidium, Num. 36. Grotius.
[a ]R. Levi Ben. Gerson, and R. Salomo, ad Levit. xx. 10.
[4. ]See his Life in Plutarch, p. 632, 633. Vol. I. Edit. Wechel.
[5. ]Didius was blamed for his shameful Perfidiousness to the Celtiberians, anantient People of Spain, who lived by Rapine. Grotius.
[6. ]De abstin. animal. Lib. III. p. 322. Edit. Ludg. 1620.
[b ]L. 36. Ecl. 3. L. 56. p. 686. Edit. H. Steph.
[a ]B. 2. Ch. 11. §7.
[1 ]The Passage is recited above, Chap. V. of this Book, § 1. Note 1.
[b ]B. 2. Ch. 16. §6.
[† ][[This word is missing in the English text but should clearly be supplied: the Latin reads ea sumenda est interpretatio quae cavet ne actus in vanum recidat, and that is the theme of the passage referred to in the marginal note.]]
[2. ]De nomine hoc [Tyranni] &c.Livy, Lib. XXXIV. (Cap. XXXI. Num. 12, 13, 15.) In Terence a Merchant of Slaves says, “Tho’ I am a Pimp, the common Bane of Youth, a perjured Wretch, a publick Nusance, yet I never wronged you:”
Adelph. (Act II. Scen. I. Ver. 34.) See the Author, who has writ concerning the Treaty of Peace between the Princes and States of the Empire of Germany.Grotius.
[a ]B. 2. Ch. 11. §7.
[1 ]But see what I have said upon Pufendorf, Law of Nature and Nations, B. III. Chap. VI. § 11. Note 11.
[a ]B. 2. Ch. 13. § 14, &c.
[1 ]But we have rejected this Principle, after Pufendorf, in B. II. Chap. XIII. § 14. & seq.
[2. ]See what I have said after Pufendorf, Law of Nature and Nations, B. IV. Chap. II. § 17.
[1 ]Compare this again with Pufendorf, B. VIII. Chap. VIII. § 2.
[2. ]We have also shewn in the Notes upon B. I. Chap. IV. how far this Obligation of Non-Resistance extends, to judge of it by Principles, that have nothing extravagant either on one Side or the other.
[a ]B. 1. C. 4.
[3. ]This Obligation is the more inviolable, as Sovereigns are very apt to treat as Rebellion and Disobedience a Resistance, by which the Subject only maintains his just Rights, and opposes enormous Violations of the Engagements of Sovereigns, either as such, or by Virtue of the fundamental Laws of the State. History furnishes but too many Instances of this Kind.
[† ][[There is a misprinted footnote number “4” at this point in the original.]]
[4. ]This was a terrible Earthquake, which happened at Lacedemon, and threw down the Whole City, five Houses only excepted, as Aelian relates, Var. Histor. Lib. VI. Cap. VII.
[5. ]In this Temple Slaves, who were ill treated by their Masters, took Refuge, Lib. XI. (Cap. LXXXVIII. p. 288. Edit. H. Steph.)
[6. ]He had sworn to the Son of Manlius, and not to himself, that he would desist from proceeding on the Accusation he had brought against the Father; and he declared in the Assembly of the People, that the Reason of his doing so, was because Titus Manlius had made him swear it, by threatening to kill him. Seneca, in relating this Fact, observes, that this young Man was the only Person, that found Means to restrain a Tribune of the People with Impunity: Juravit Tribunus, nec fefellit; & causam actionis remissae concioni reddidit. Nulli alii licuit impunè Tribunum in ordinem redigere. De Benef. Lib. III. Cap. XXXVII. Grotius.
[a ]B. 2. Ch. 4. §8. n. 3.
[b ]In the following Chapter, § 7.
[1 ]See my Observations upon Pufendorf, Law of Nature and Nations, B. IV. Chap. II. § 17. Note 2. Edit. II.
[2. ]See Plutarch upon this Head in the Lives of those two celebrated Legislators, p. 57. D. E. and p. 92. But there is no mention in that or any other Place, (that I know of) of renewing the Oath annually. On the contrary it seems, that such renewal was not thought necessary for continuing the Oath in all its Force, notwithstanding the Change of Persons. I find at least that Dionysius Halicarnassensis, a Greek Author, says expressly, that the Oath once taken by the Whole People was sufficient to make a Law irrevocable, even in regard to the Posterity of those, who had sworn to observe it. This is where he treats of sacred Law, of which more will be said in the following Notes. Antiq. Rom. Lib. VI. Cap. LXXXIX.
[3. ]Legeitaque Legem, quae te jurejurando obstrictam tenet. Lib. V. Cap. III. Num. 3. Extern.
[a ]See Manutius de Legibus.
[4. ]Gronovius criticises our Author in this Place. This is not Cicero’s Thought, says he. The Orator confines himself to proving, that nothing is sacred but what the People have declared so: Sacrosanctam enim nihil potest esse, nisi quod per Populum Plebemve sancitum est. Orat. pro Balbo. Cap. XV. So that the Authority of the People was indeed necessary to the making a sacred Law: But every Law, to the Establishment of which the Interposition of the People was necessary, was not therefore Sacred, unless it implied, that whoever violated it, his Head should be forfeited to the Gods, so that any other Person might kill him with Impunity: For that is understood by Caput sacrum sancire, or consecrare. But this makes nothing against our Author. He never pretended, that the Reason, why a Law was called Sacrata, was only because it had been established by the Authority of the People. The Thought is too absurd to have entered into the Mind of Grotius, or for him to have ascribed to Cicero. He says expresly the contrary in his Florum Sparsio ad Jus Justinian. (p. 25, 26. Edit. Amstel.) Erant autem Leges omnes sanctae, quae sanctionem haberent, at non omnes sacratae. After which he cites the Definition of these sacred Laws from Cicero himself, in the fourteenth Chapter of the same Oration: And he adds there Festus (on the Words Sacratae Leges sunt, &c.) as also the Scholiast upon the Words of Horace, Sanctarum inscitia Legum, (Lib. II. Sat. I. Ver. 81.) Our Author therefore intended only to say, that the People, in instituting this Kind of Laws, bound themselves to observe them by the Sanctity of an Oath, religione obligabatur: Words, to which the learned Critick ought to have attended, and which are taken from the Orator himself, upon whose Authority he founds his Opinion: Qui, injussu suo, nullo pacto potestReligione obligari.— QuodPublica Religionesanciri possit, id abest. He says a little above, Quod quum magis fide illius Populi, justitiâ vestrâ, vetustate denique ipsâ, quam aliquoPublico vinculo Religionisteneretur, &c. Ibid. Cap. XV. So that it is not without Foundation, that our Author makes Cicero say, the People’s Oath was necessary in these Sort of Laws: And we find in Dionysius Halicarnassensis, (ubi supra VI. 89.) that the most Eminent were attended with it; besides the Imprecation against the Head of all those who should violate them. See also Festus, at the Word Sacrosanctum. Whether they were called Sacratae for the one or the other of these Reasons, is a different Thing; and it does not appear clearly, that our Author intended to give the Etymology of that Word in this Place; At least Cicero, whom he cites, makes use of another Term, Sacrosanctum. It appears also by what Festus says at the Words Sacratae Leges, that even the Antients disagreed concerning this Etymology. The Reader may see upon this Question of Criticism, the Animadversiones of the late Mr. Perizonius, p. 418, 419. and the Remarks of the same learned Man upon the Minerva of Sanctius, p. 761, 762. of the last Edition.
[5. ]Et quum religione, &c. Lib. III. (Cap. LV. Num. 7. & seq.)
[6. ]Antiq. Rom. Lib. VI. (Cap. LXXXIX.)
[7. ]As reported at large by Plutarch in his Life.
[1 ]See above, B. II. Chap. XXV. § 8. Num. 3. and a Dissertation of Obrecht, De Sponsore Pacis, § 3. Diss. VII. p. 151, 152.
[2. ]See what the Author has said above, B. II. Chap. XI. § 18. Num. 1.
[3. ]Perseus thought that the hardest Condition in the Treaty: Una eum res, quum victo, &c.Livy, Lib. XXXIX. Cap. XXIII. Num. 6.
[a ]B. 1. Ch. 3.
[1 ]It is necessary in my Opinion to distinguish here, whether he who has compelled the other to treat by the Superiority of his Arms, had undertaken the War without Reason, or whether he could alledge some specious Pretext for it. If it was without any Cause, as Alexander’s going to conquer remote Nations, who had never heard of him, and of Consequence could not have done any Thing against him, nor owe him any Thing; or even if the Cause alledged be evidently a frivolous Pretext in the Judgment of every Man of common Reason: I do not see wherefore the Conquered should be obliged to observe the Treaty of Peace, any more than a Man fallen into the Hands of Thieves should be held to carry exactly, or pay at their Demand, the Money he had promised them as a Ransom for his Life or Liberty; which our Author himself does not pretend; tho’ building upon false Principles, which we have rejected more than once, he is for having such a Promise to be valid in itself. But if the Conqueror had undertaken the War for some plausible Reason, tho’ unjust at Bottom, when examined without Prejudice, in such Case the common Interest of Mankind undoubtedly requires, that some Difference be made between Promises extorted by Fear between private Persons, and those to which a Sovereign Prince or People is compelled by the bad Success of their Arms, tho’ just. The Reason our Author uses in this Place is very good: And that without supposing a tacit Consent of Nations, which only renders the Engagement of the Conquered the stronger. For the Law of Nature itself which requires that Societies, as well as every Individual, should endeavour their Preservation, does by that alone make us regard not properly Acts of Hostility as just on the Side of the unjust Conqueror; but the Engagement of the Treaty of Peace as valid notwithstanding; so that the Conquered cannot dispence with observing it, upon the Pretext of the unjust Fear that occasioned it, which they might have done without the Consideration of the Advantage arising from thence to Mankind. This Interest of publick Tranquillity requires also, that even when a Treaty of Peace has been made, in Consequence of a War undertaken without Cause, or for one manifestly frivolous, the unjust Conqueror, who had no lawful Title, acquire it afterwards, in a reasonable length of Time, when the Conquered submit patiently to the Yoke, without being forced to it by the same Fear, which induced them to treat at first. See above, B. II. Chap. IV. § 12. & seq. To what I have said may be added the Reason alledged by Pufendorf, Law of Nature and Nations, B. VIII. Chap. VIII. § 1.
[a ]See the Treatise De Compos. Pacis.
[2. ]Est autem jus etiam bellicum, fidesque juris jurandi saepe cum hoste servanda. De Offic. Lib. III. Cap. XXIX.
[3. ]The Passage has been already quoted above, Chap. XII. of this last Book, § 7. Note 8.
[1 ]Thus a Promise extorted from an Embassador made Prisoner is not valid, according to the Law of Nations. See Mariana, De Rebus Hispan. Lib. XXX. Grotius.
[a ]B. 2. Ch. 13. § 16.
[1 ]Quanta autem Justitia sit, &c. Offic. I. 29.
[2. ]Se tunc Senatus non eos, &c. Lib. VI. Cap. VI. Num. 3.
[3. ]Item bellis Punicis omnibus, &c. (Bell. Catilinar. in Orat. Caesar. Cap. L. Edit. Wass.)
[4. ]De Bell. Hispan. p. 388. Edit. H. Steph.
[5. ]Misericordia ergo illam quaestionem, non aequitas, rexit: Quoniam quae innocentiae tribui nequierat absolutio, respectui puerorum data est. Lib. VIII. Cap. I. Num. 2.
[6. ]Quod item apud Catonem scriptum esse [in Originibus] video, nisi pueris & lachrymis usus esset, poenas eum daturum fuisse. De Orat. Lib. I. Cap. LIII. See also in Brut. Cap. XX.
[1 ]Compare Pufendorf with this Place, Law of Nature and Nations, B. V. Chap. XI. § 9. and what our Author has already said, B. II. Chap. XV. § 15.
[2. ]Nunciate, inquit, Regi vestro, Regem Romanum, &c. (Livy, Lib. I. Cap. XXII. Num. 7.)
[† ][[The English text reads “whether” instead of “which.” This is a mistake on the part of the translator: the Latin is uter, “which (of two), ” not utrum, “whether.”]]
[3. ]Digest. Lib. XVII. Tit. II. pro Socio, Leg. XIV.
[a ]B. 2. Ch. 7. §2.
[1 ]See Pufendorf, Law of Nature and Nations, B. V. Chap. XI. § 5. & seqq. Our Author cites here in a Note the Passage of Tertullian, where he says, that no one ought to object to a Compensation of good or ill on both Sides: Nulli compensatio invidiosa est, in qua aut gratiae, aut injuriae, communis est ratio. Scorpiac. adv. Gnosticos, Cap. VI.
[2. ]Sic Debitori suo Creditor, &c. De Benefic. Lib. VI. Cap. IV.
[1 ]If a Man, says he, has entrusted me with a Deposite, and afterwards stole something from me, I ought to prosecute him for the Theft, tho’ he may Claim the Deposite from me by another Action: Separantur actiones, &c. Ibid. Cap. V. See the Receptae Sententiae of the Civilian Julius Paulus, Lib. II. Tit. XII. § 12. and the Notes of Cujas and Mr. Schulting upon him.
[2. ]Quae proposuisti, mi Liberalis, exempla, &c. Ubi supra, Cap. VI.
[1 ]Colonum suum non tenet, &c. De Benefic. Lib. VI. Cap. IV.
[2. ]These Words are in the Passage which I have cited above, § 15. Note 2.
[3. ]Beneficium nulli legi, &c. Ubi supr. Cap. VI.
[1 ]Dedisti beneficium, &c. Ibid. Cap. V.
[2. ]Potius comparatione facta, &c. Cap. VI.
[1 ]Nullam excusationem receperunt, &c. De Benefic. Lib. VII. Cap. XVI.
[a ]B. 3. Ch. 3. §2.
[2. ]The King commended by Jarchas was named Ganges, whose Ally is said to have carried his infidelity so far, as to seize the Person of the Queen his Spouse. Philostrat. Vit. Apollon. Tyan. Lib. III. Cap. XX. Edit. Olear.
[b ]B. 2. Ch. 11, 13, 15, 16.