Front Page Titles (by Subject) CHAPTER XX: Concerning the publick Faith whereby War is finished; of Treaties of Peace, Lots, set Combats, Arbitrations, Surrenders, Hostages, and Pledges. - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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CHAPTER XX: Concerning the publick Faith whereby War is finished; of Treaties of Peace, Lots, set Combats, Arbitrations, Surrenders, Hostages, and Pledges. - 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 the publick Faith whereby War is finished; of Treaties of Peace, Lots, set Combats, Arbitrations, Surrenders, Hostages, and Pledges.
I.The Division of Faith between Enemies, in order to what follows.I. All Agreements between Enemies depend upon Faith, either expressed or implied. Faith expressed, is either publick or private. Publick is either of the supreme or subordinate Powers. That of the supreme Powers, either puts an end to the War or is of Force during its Continuance. Among those Things that conclude a War, some are looked on as Principals, some as Accessories. The Principals are those very Things that finish the War, either by themselves as a Treaty of Peace, or by Consent that it be referred to another Thing, as the Decision of Lot, the Success of a Battle, the Judgment of an Arbitrator; whereof the first is purely casual, but in the two others the Chance is moderated by the Strength of the Mind or of the Body of the Combatants, and by the Power given to the Judge.
II.The Power of making Peace is in the King, if the Government be Regal.II. They who have Power to begin a War, have likewise Power to enter upon a Treaty to finish it; for every Man is the best Manager of his own Affairs;a whence it follows, that in a War on both Sides publick, it is wholly in their Power who enjoy the supreme Authority, which in a Government truly monarchical1 belongs to the King, unless there be any Thing that hinders him from exercising his Right.
III.What if the King be an Infant, Mad, a Prisoner, an Exile?III.a For if a Prince be not out of his Minority, (which in some Kingdoms is determined by Law, in others by probable Conjectures) or be not in his true Senses, he is not capable of making Peace. The same is to be said1 of a King that is a Prisoner, if his Kingdom had its first Rise2 from the Consent of the People; for it is not to be supposed, that the People would confer the Sovereignty upon one, with a Power even to exercise it at a Time when he is not Master of his own Person. Therefore in such a Case not the full Sovereignty, but the Exercise of it, and as it were the Guardianship is in the People, or him whom they shall delegate. But of those Things which are privately his own, whatsoever a King, tho’ a Prisoner, shall Contract, will be valid, according to the Principles which we shallb establish concerning private Agreements. But what if a Prince be an Exile,3 is it in his Power to make Peace? Yes4 certainly, if it appear that he has no Dependence upon any Person. Otherwise his Condition would be little different from that of a Prisoner, for there are Prisoners at large. Regulus refused to declare his Opinion in the Senate,5 alledging, that as long as he was bound by an Oath to his Enemies, he could not rightly be a Senator.
IV.In an aristocratical or democratical State this Power is in the Majority.IV. In an Aristocracy, or Democracy, the Power of making Peace shall be in the major Part: In the one of the Sovereign Council, in the other of the People<696> who have a Right to vote according to the Custom of the Country, as we havea said in another Place. Therefore Things thus agreed upon, shall be obligatory even upon those who dissented from them. As in Livy,1When it shall be once decreed, it must then be maintained as a good and profitable Alliance by all, even those who before were against it. Also Dionysius Halicarnassensis,2It must be obeyed as just, whatsoever the Majority has decreed. And Appian, All are obliged to obey a Decree, and no Excuse to be admitted against it. As also Pliny,3What has pleased the most, must bind the rest. But they may, if they please, make use of the Advantages of the Peace concluded against their Opinion.
V.How the Sovereignty or any Part thereof, or the Goods of a Kingdom, may be alienated to obtain Peace.V. 1. Now let us see what Things are subject to such an Agreement. Most Kings in our Days, holding their Kingdoms not as patrimonial, but as usufructuary, have no Power by any Treaty to alienate the Sovereignty in Whole, or in Part: Yea, and before they come to the Government, at what Time the People are their Superiors;1 such Acts may [[by† a fundamental Law, for the future be rendered absolutely void and null; so that even as to Damages and Interest, they shall be no ways binding. For it is probable, that Nations thought fit to ordain that2 in that Case, the other Party should have no Action against the King for Damages and Interest, since, if that took Place, the Goods of the Subjects might be seized, as answerable for the King’s Debt; and so the Precaution that might have been taken to hinder the Alienation of the Sovereignty, would become entirely useless.]]
2. But that the entire Sovereignty may be firmly alienated, the Consent of the Whole Body of the People is required; which may be done by their Representatives, whom they call the Orders or States. And that any Part of the Kingdom may be firmly alienated a twofold Consent is required, both of the Whole Body, and especially of that Part which is to be alienated, which cannot be divided from the Body to which it was united against its Will. But yet in Case of extreme Necessity, and otherwise unavoidable, that very Part may firmly convey the Government over themselves to another without the Consent of the People,3 because it is probable that Power was reserved, when civil Societies were instituted.
3. But in patrimonial Kingdoms, nothing hinders, but that a King may alienate his Crown as he thinks fit. But it may happen to be so, that that King may not have Power to alienate any Part of his Dominion, as if he received it as his Propriety4 upon Condition not to divide it. But as concerning those Things which are called the Goods of the Kingdom, they may become the King’s Patrimony two Ways, either separably, or inseparably with the Kingdom; if this latter Way, they may be transferred, but not without the Kingdom; if the other, without it.
4. But those Kings, whose Kingdoms are not patrimonial, can scarcely be thought to have a Power to alienate the Goods of the Kingdom, unless it plainly appear by some fundamental Law or Custom, that has never been opposed, that such a Power was given them.<697>
VI.How far the People or Successors are obliged by a Peace made by the King.VI. We have elsewherea said, how far the People and the Successors may be bound by the Promise of a King; namely,1 as far as the obligatory Power is comprehended in the Sovereignty; which should neither be drawn out to an Infinity, nor confined within too narrow Bounds; but we ought to consider as valid in that Respect whatever the Sovereign engages himself to do for apparent Reasons. It is a different Thing, if a King be the absolute Lord of his Subjects, and his Rule be rather despotical than civil,2 as having brought them into Bondage by Conquest; or have obtained the Property of their Goods, without being Master of their Persons, as Pharaoh when he had purchased all the Land of Egypt, or as those who receive3 Strangers into their private Lands. For in this Case, besides a regal Right, there accrues another Right, which renders an Engagement valid, which a bare regal Power of itself could not do.
VII.The Goods of Subjects may by a Peace be granted away for the publick Good, but with Condition of repairing Losses.VII. 1. This also is often disputed, what Right Kings have to dispose of the Goods of private Men to procure aa Peace, who have no other Power over the Goods of their Subjects, than as they are Kings. I have alreadyb said, that the State has an eminent Right of Property over the Goods of the Subjects, so that the State, or those that represent it, may make Use of them, and even destroy and alienate them, not only upon an extreme Necessity, which allows to private Persons a Sort of a Right over Men’s Goods; but for the publick Benefit, which ought to be preferred to any private Man’s Interest, according to the Intention, reasonably presumed, of those who first entered into civil Society.
2. To which we must add, that the State is obliged to repair the Damages, sustained by any Subject on that Account, out of the publick Stock; so that he himself who hath sustained the Loss, contribute, if it be necessary, according to his Quota, to the discharge of that publick Debt. Neither shall the State be released from this Obligation, tho’ at present it be not able to satisfy it, but whenever the State shall be in a Capacity, this suspended Obligation shall resume its Force.
VIII.What of Things already lost in War.VIII. Neither can I here generally admit the Opinion of Ferdinandus Vasquius, that a State is not obliged to repair such Damages caused by War, because the Right of War permits such Damages. For this Right of War, (as we havea elsewhere explained it) partly Respects other Nations, and partly thoseb that are at War among themselves; but it does not extend to the Members of the same State, who since they are closely associated, it is equitable, that they should esteem each Man’s Loss, sustained on Account of the Association,1 as common to all; yet this also may be<698> constituted by the civil Law, that no Action may be brought against the State for Damages by War,2 in order to make every Man more ardent to defend his own.
IX.No Distinction here between Things got by the Law of Nations, and those by the civil Law.IX. There are some that place a vast Difference between those Things which are the Subjects by the Law of Nations,1 and those which are theirs by the civil Law; that they may allow the Prince a larger Right over these, even of taking them away without Cause or Satisfaction; but not so over the other: But falsly. For the Right of Property, whatever be the Title of it, has always its proper Effects by the Law of Nature itself; so that it cannot be taken away, but for such Causes as are naturally2 inherent in the Property, or such as arise from some Fact of the Proprietor.
X.What is done by a King, is taken by Foreigners to be for a publick Good.X. But whether the publick Interest required that the Goods of the Subjects should be granted away by a Treaty, which a King ought not to do but for such a Reason, is a Question to be decided between the King, and the Subjects, as that of repairing Damages regards the State, and particular Persons. For to Strangers that contract with him the bare Fact of the Prince is sufficient, not only from the Presumption which the Dignity of his Person brings with it, but also from Law of Nations, whicha allows the Goods of Subjects to stand obliged by the Fact of the King.
XI.A general Rule for the interpreting Articles of Peace.XI. 1. But as to the true Understanding of the Articles of Peace, we must here observe, what has been saida before. The more favourable any Article is, the more largely it should be taken; and the less favourable it is, the more strictly it should be understood. If we consider the bare Law of Nature, there is nothing more favourable than what tends to this, that every one should enjoy his own. Which the Greeks express thus, ἕχαστον ἔχειν τὰ ἑαυτον̂. Wherefore where the Meaning of the Articles is ambiguous, it should be taken in this Sense, that he that has the Justice of the War on his Side, should obtain what he took up Arms for, and also recover his Costs and Damages, but not that he should get any Thing farther by way of Punishment, for that is odious.
2. But because in treating of a Peace it seldom happens, that either the one or the other of the Enemies owns he had been in the wrong; therefore in Articles of Peace, such an Interpretation should be admitted, as may according to the Justice of the War make the Balance1 even on both Sides; which is generally done two Ways. For either it is intended, that those Things whereof the Possession has been disturbed by War, should be put on their antient Foot, (which are the Words of Menippus in his Oration, wherein he treats of the several Sorts of Leagues) or as the Greeks, say,2 ἔχοντες ἃ ἔχουσι, That Things should remain as they are.
XII.In doubtful Cases, it is believed that Things should remain as they are.XII. 1. Of these two Senses, in a doubtful Case, the latter is more readily presumed, because what it includes is more easy to be done, and it brings no Alteration. Hence Tryphoninus observes, that after the Peace such Captives only are to return by Postliminy, as are expressly mentioned in the Treaty, as we have proved elsewhere1 by invincible Arguments, in following the Correction of Faber. So Fugitives also are not to be restored, unless stipulated.2 For by the Law of War we<699> receive Deserters, that is, by the Law of War we are allowed to entertain, and list among our own Troops such as quit their own Party. All Things by such an Agreement continue his, who is possessed of them.
2. But that Word possessed is taken not civilly, but naturally; for in War a Possession in Fact is sufficient, neither is any other required. Lands, I have alreadya said, are then possessed, when they are inclosed by some Fortifications; for such as are only encamped upon for a Time, are not here respected. Demosthenes3 in his Oration for Ctesiphon, says, that Philip made haste to possess all the Places he could possibly, knowing well that at the concluding of the Peace, he should keep all that he had in his Possession. But incorporeal Things4 cannot be possessed, but eitherb by the Things to which they adhere, (as the Services of Manors) or by the Persons whose they are.5 It is not however necessary to be Master of the Person, in order to possess this Sort of Things, when the Question is concerning a Right, which can only be exercised in the Country, which was formerly the Enemies.
XIII.What if it should be agreed that Things should be restored to the same Condition that they were in before the War begun?XIII. In that other Kind of Agreement, whereby the Possession of Things disturbed by War, is to be restored, we must observe, that the last Possession immediately before the War is here meant; yet so as those private Persons that were then unjustly ejected,1 may have recourse to Justice, either to obtain a provisional Decree, whereby they may be put again in Possession, or to claim their Estate.
XIV.Then they who were before free, and have voluntarily submitted themselves, are not to be restored.XIV. But if a free People shall1 voluntarily submit themselves to either Party engaged in War, this Article of Restitution cannot reach them; because it only relates to those Things which were done by Force, Fear, or otherwise by a Treachery not allowable but in regard to an Enemy. Thus though the Peace were concluded among the Greeks, the Thebans yet2 retained Plataea, pretending That they were possessed of it, not by Force nor Treachery, but by the voluntary Surrender of the Inhabitants. And by the same Right was Nisaea3 retained by the Athenians. T. Quinctius used the same Distinction against the Aetolians, replying, That was the Law of Cities taken by Force, but the Cities of Thessaly freely4submitted themselves unto the Roman Dominion.
XV.Damages by War, if in doubt, are supposed to be forgiven.XV. If there be no Clause whereby it is otherwise agreed upon, it is to be supposed in every Peace, that no Action shall be commenced for Damages done in War; which also is to be understood of those done between private Persons,1 these being also the Effects of War. For in a Doubt, those who treat of Peace,<700> are presumed with Reason to do it on such a Foot, that there be nothing which supposes the one or the other guilty of Injustice.
XVI.But not those before the War due to private Persons.XVI. Yet those Debts, which were due to private Persons at the beginning of the War,1 are not to be accounted forgiven, for these are not acquired by the Right of War, but only forbidden to be demanded in Time of War; therefore the Impediment being removed, i.e. the War ended, they retain their full Force. But tho’ it ought not to be easily presumed, that what was a Man’s Right before the War is taken from him, for this Cause chiefly (as Cicero2 well observes) Civil Societies were first constituted, that every one might keep his own, yet this must be understood of that Right, which is derived from the Inequality of Things.
XVII.Punishments also before the War publickly due, if in doubt, are believed to be forgiven.XVII. It is not so concerning the Right to Punishment; for this Right, as far as it concerns Kings, or People, is for this Reason presumed to be remitted; lest the Peace should not be compleat, if it left any old Grudges behind, which might in Time renew the War. Wherefore unknown Injuries are also comprehended in the general Terms, as the Action1 of the Carthaginians in drowning some Roman Merchants, was remitted by the Romans, before it was discovered to them, as Appian relates. Dionysius2Halicarnassensis says, Those are the best Reconciliations, which leave behind nothing of Resentment, or Ill-will. And also Isocrates,3After a Peace is concluded, it is base to remember former Injuries.
XVIII.What of the Right of private Persons to exact Punishment.XVIII. There is not the same Reason that private Men should be thought to remit the Right of demanding Punishment, because this may without War be judicially required; but since this Right is not ours in the same manner, as that, which arises from Inequality, and besides, Punishments having always something odious: The slightest Conjectures that may be drawn from the Terms of the Treaty, are sufficient to found a just Presumption, that this also is passed by.
XIX.That Right which before the War was publickly claimed, but disputed, is easily presumed to be forgiven.XIX. But whereas we have said, that the Right, which we had before the War, should not easily be thought to be remitted, this indeed holds very true in the Right<701> of private Men. But as to the Right of Kings and Nations, a Remission may be more easily presumed, if the Terms of the Treaty, or probable Conjectures drawn from them, lead us to that Interpretation; but especially if the Right in question were not clear, but in dispute. For it is humane to believe that those who make Peace intend sincerely to stifle the Seeds of War. The same Dionysius Halicarnassensis well observes,1We are not so much to endeavour to patch up a broken Friendship for the present, as to take Care to prevent our being involved again in the same War. For we are met here not to put off the Miseries of War, but entirely to take them away; which last Words are almost taken Verbatim from Isocrates, in his Oration concerning Peace.
XX.Things taken after Peace to be restored.XX. Whatsoever is taken away after the Peace is absolutely concluded, is to be restored, for from that Time the Right of War immediately ceased.
XXI.Some Rules of Agreement whereby Things taken in War are to be restored.XXI. But of those Articles which relate to the Restitution of Things taken in War, those in the first Place may be more largely interpreted, that are mutual, than1 those that concern only one Party. Next, those relating to Persons2 are more favourable than those that respect Things; and even among those that relate to Things, they that concern Lands3 are more favourable, than those that respect Moveables; and also among these, they that are in4 Possession of the State, more than those of private Persons. And again, among those in the Possession of private Men, they are5 more favourable, that are possessed under a gainful, than those under a chargeable Title, as Things bought with Money, and those held in Dowry by Marriage.
XXII.Fruits, to be restored.XXII. To whom any Thing is granted by Articles of Peace, to whom are also all the Profits allowed1 from the Time of that Grant, but not before; as Augustus Caesar well argued against Sextus Pompeius, who having Peloponnesus granted to him, would have also had all the Tributes that were in Arrears for some Years past, before the Time of that Grant.
XXIII.Of the Names of Countries.XXIII.1 The Names of Countries are to be taken according to the present use, not so much of the common People, as of intelligent Persons, for such Affairs are commonly managed by Men of understanding.<702>
XXIV.Of Reference to some former Agreements, and of the Obstruction here.XXIV. These two Rules are of frequent use, viz. as often as Reference is had to some precedent Article, or antient Treaty, so often the Qualities or Conditions expressed in the preceding Article or antient Treaty are supposed to be repeated; and he shall be reputed to have fulfilled his Agreement, who was willing to have done it,1 if he had not been prevented by the other, who quarrels with him on that Head.
XXV.Of Delay.XXV. But whereas some affirm, that an Excuse is allowable for a short delay in the Performance,1 this holds not true,a unless caused by an unforeseen Necessity. For it is no wonder, that some of our Canons seem2 favourable to such Excuses, when it is their Design to exhort Christians to such Things as are agreeable to mutual Charity. But in this Question of the interpreting Agreements, we do not enquire what is most commendable, nor what Piety or Religion demands, but what every one may be forced to do; in a Word what is merely of external Right, as we call it in Opposition to the Duty of Conscience.
XXVI.In a doubtful Case the Interpretation is to be given against him that gives the Conditions.XXVI. But where the Meaning is doubtful, the Interpretation ought to be rather made against him1 who imposes the Conditions, as generally the more powerful.2The Power is in him that gives, says Hannibal, not in him that desires Conditions of Peace: As the Interpretation ought to be against the3 Seller. For he can only blame himself, for not fully explaining himself; but the other receiving Conditions in Words capable of divers Senses, has a Right to take them in the Sense most favourable to himself; agreeable to which is that of Aristotle,4When Friendship is contracted on the account of Interest, the Profit of the Receiver ought to be the Measure (of what is due).
XXVII.Distinctions to be made between new Occasions of War, and breaking the Peace.XXVII. It is also a daily Dispute, when a Peace may be said to be broken, which the Greeks call παρασπόνδημα; for it is not directly the same Thing, to give a new Occasion of War, and to break a Peace. But there is a great Difference1 between them, as well in regard to the Penalty which the Breaker incurs, as with respect to the Liberty of the injured Party to disengage his Word in the other Articles of the Treaty. A Peace then may be broke three Ways, either by doing what is contrary to all Peace, or against that which is expressly mentioned in that Peace, or against that which is to be understood from the Nature of every Peace.<703>
XXVIII.How a Peace may be broke by doing contrary to what is supposed to be in every Peace.XXVIII. First, It may be done, when that is acted which is contrary to all Peace; as when we are invaded in a hostile Manner, when there is no new Cause of War, which if it may be alledged with any Plausibility, it were better to suppose it an Act of Injustice without Treachery than with it. It seems almost unnecessary to mention that of Thucydides,1Not they who repel Force by Force, but they who first offer the Violence, are the Breakers of the Peace. This being granted, we must next see, who are the Invaded, and who by invading break the Peace.
XXIX.What if we be invaded by Allies.XXIX. I find some are of Opinion, that if the Invaders be but their Allies, the Peace is broken. I do not deny but such a Contract may be made, not properly, that one Ally should be liable to Punishment for the Fact of another; but that the Continuance of the Peace may then be deemed to depend on a Condition, partly arbitrary, and1 partly casual. But it is scarce credible, that such a Peace should be made, unless it manifestly appear from the Treaty itself; for it is irregular, and inconsistent with the Design of those that make Peace. Therefore they that thus invade, without the Assistance of others, shall be adjudged the Breakers of the Peace, and it shall be lawful to make War on them, not on others; contrary to which, the Thebans formerly pleaded against the2 Associates of the Lacedemonians.
XXX.What if by Subjects, and how their Act may be judged approved.XXX. But if Subjects commit any Violence without publick Order, we must then see whether this Act of private Men can be said to be approved by the State; to which three Things are required. 1. The Knowledge of the Fact. 2. A Power to punish. And 3. A Neglect in the Person authorised to do it; as you may easily gather from what has beena said before. 1. The Knowledge may be proved, if the Fact be notorious, or has been complained of. 2. A Power is presumed, unless there be a Rebellion. 3. A Neglect may appear, if the Time be elapsed, which every State generally takes to punish Offenders. And such a Neglect is equivalent to a publick Decree. Neither can what Agrippa says in Josephus [[1 be otherwise understood, That the King of Parthia should look upon the Peace as broken, if any of his Subjects took up Arms against the Romans.]]
XXXI.What if Subjects serve under another Prince?XXXI. Another Query is often made, whether it be all one, if Subjects take up Arms, not by themselves, but fight under others engaged in War. The Cerites in Livy clear themselves, by saying, their Subjects took up Arms without any publick Order. The same was the Defence of theaRhodians. And indeed the best founded Opinion is, that such a Thing ought not to be deemed permitted, unless there are<704> apparent Reasons for believing that there was an Intention to permit it; as we see now that is sometimes practised, in Imitation of the old Aetolians, who accounted it lawful,1To plunder the Plunderer. Which Custom Polybius says was so powerful,2That tho’ they were not at War themselves, but only others, their Friends, or Allies, yet it was lawful for the Aetolians, without any publick Order, to fight on both Sides, and to prey on either Party. And Livy gives the same account of them. They suffer their Youth,3but without any publick Commission, to fight against their Allies, and often both Parties have Aetolian Auxiliaries at the same Time. Thus the Hetrurians4 of old denied to assist the Veientes, but yet did not hinder their Youth from going of their own free Will into the Service.
XXXII.What if Subjects be injured, explained by a Distinction.XXXII. 1. Again, the Peace is said to be broken, not only when the whole Body of a State, but if any of the Subjects be forcibly invaded, unless upon Occasion of some new Cause of War. For Peace is made to the Intent that all the Subjects might live in Safety: The Treaty being an Act of the State for all the Members in general, and for each in particular. And if there be even a new Cause of War, it shall be lawful, tho’ the Peace subsists, for every one to defend himself and his Goods, against those that attack him. For it is natural (as Cassius says) to repel Force by Force. Therefore this Right cannot easily be thought to be renounced amongst Equals. But it shall not be lawful to revenge ones self, or by Force to recover what has been taken away, unless Judgment be first denied us. For this may admit of some Delay, but that of none.
2.1 But if Subjects make it their constant Practice to commit Outrages contrary to the Law of Nature, so that there be Reason to believe they do it wholly against the Will of their Rulers, and no Court of Judicature can reach them, such as are Pirates; we may both recover our Losses from them, and avenge ourselves on them by Force of Arms, as if they were surrendered to us. But to assault others that are innocent on that Pretence, is directly against the Peace.
XXXIII.What if Allies? With a Distinction.XXXIII. 1.1 A forcible Invasion of our Allies also breaks the Peace, but it must be those2 that are comprehended in the Peace, as I have a already shewn in the Case of the Saguntines. This the Corinthians alledge in Xenophon, [[3 in his 6th Book of the Greek History, We have all sworn to one another. But tho’ those Allies do not covenant for themselves, but others do it for them, it is still the same Thing, provided it fully appears that they have ratified it; but as long as it is not certainly known that they have done it, they are reputed as Enemies.]]
2. But the Case is different of the other Allies, who have neither been engaged in the War, nor comprehended in the Treaty of Peace; as also of4 our Kinsmen and Relations, who are not under our Dependence; neither can an Assault upon them amount to the Breach of Peace. Yet it does not follow, (as we haveb said before) that War may not be made on their account, but then it will be a new War and for a new Subject.
XXXIV.How a Peace may be broken by doing contrary to what is expressed in the Peace.XXXIV. The Peace is likewise broken, (as I have said already) by doing contrary to what is expressed in the Peace; where by doing is likewise comprehended, not doing what we ought to do, and when we should do it.<705>
XXXV.Whether any Distinction is to be made between the Articles of Peace?XXXV. Neither can I here admit of any Distinction between the Articles of Peace, as if some were of greater Concern than others: For whatever is inserted in the Articles, ought to be regarded as important enough to be observed. But Goodness, especially Christian Goodness, will more easily forgive small Faults, particularly if they be repented of; as Seneca speaks,
But to secure the Peace the better, it would be well done2 to add to thea Articles of less Concern, this Clause, That the Violation of any of them shall not be sufficient to break the Peace, but they shall be first put to Arbitration, before recourse is had to Arms, which Thucydides3 records was stipulated in the Peloponnesian Treaty of Peace.
XXXVI.What if some Penalty be added. XXXVI. And I am clearly of Opinion, that it is on that Foot we are to explain the Intention of the two Parties, when a particular1 Penalty is expressly added to the Violation of certain Articles; not that I am ignorant, that such an Agreement may be made, that it shall be in the injured Person’s Choice, either to exact the Punishment, or make void the Accommodation. But the Nature of the Affair in question requires rather the other Interpretation, which I mentioned. This is also very plain, and what I haveb [[sic:asaid before, and proved by the Authority of History, that even in regard to Articles simply stipulated, he who fulfils not his Promise, when the other, who ought first to have executed his Engagements has failed therein, does not break the Peace; since his Obligation was conditional.
XXXVII.What if hindered by absolute Necessity?XXXVII. But if an absolute Necessity occasion the Non-Performance of the Agreement, as if the Thing promised be lost, or taken away, or the doing of it be by some Means or other rendered impossible, the Peace shall not indeed be looked upon as broken; for (as I have said already) Peace does not use to depend upon a casual Condition; but the other Party shall have his Choice whether he had rather wait for the Performance of the Promise, if there be any Hopes of a possibility of its being done, though late, or receive the full Value of it, or be discharged from any mutual Engagements answerable to this Article, or thought equivalent to it.
XXXVIII.The Peace shall stand firm, if the injured Person be willing to it.XXXVIII. When there is even Treachery on one Side, it is certainly at the Choice of the innocent Party to let the Peace subsist; as Scipioa did formerly after many perfidious Actions of the Carthaginians. Because no Man, by doing contrary to his Obligation, can there by discharge himself from it. For though it be expressed, that by such a Fact the Peace shall be reputed as broken, yet this Clause is to be understood only in Favour of the Innocent, if he thinks fit to make use of it.
XXXIX.How a Peace may be broken, by doing what is contrary to the Nature of every particular Peace.XXXIX. Lastly, We have said, that the Peace may be broken by doing what is contrary to the Special Nature of the Peace concluded.
XL.What comes under the Notion of Friendship.XL. 1. Thus those Things that are done contrary to Friendship, do break that Peace which was contracted under the Condition of Friendship; for what the Duty of Friendship alone may require from others, ought also here to be performed by the Right of Covenant. And to this (tho’ not to every Peace,1 for there are some not on the same Account of Friendship, as Pomponius observes,) we may refer many of those Things, which Civilians advance concerning Injuries and Affronts done without force of Arms; and especially that of2Tully, If any Thing be committed after a Reconciliation made, it shall not be accounted a Neglect, but an Offence, and not imputed to Imprudence, but Perfidiousness; but even here also we are not to judge of it invidiously.<706>]]
2. Therefore an Injury done to a Relation, or a Subject, of him with whom a Treaty of Peace has been concluded, shall not be deemed as done to himself, unless there was a manifest Design to affront and insult him thereby. Which natural Equity the Roman Laws observe, in Regard to Slaves3 that have been cruelly handled; and Adultery and Ravishment shall be imputed rather to Lust than Hatred: And the invading another Man’s Property, shall be reputed rather a new Act of Covetousness than of Treachery.
3. But cruel Threatnings, without some new Cause given, are inconsistent with Friendship; and hereto I will refer the Building of strong Places on the Frontiers, not so much for Defence as Offence, and an unusual raising of Forces, if there be just and apparent Reasons to think that they are prepared against him with whom we have made Peace.
XLI.Whether to entertain Subjects and Exiles be contrary to Friendship.XLI. 1. To1 receive particular Persons as are willing to remove from one Prince’s Territories into another’s, is no Breach of Friendship; for this Liberty is not only natural, but has something favourable in it, (as we have saida elsewhere). In the same Place I shall rank the Entertainment given to Exiles: For as I haveb before proved out of Euripides, the State has no Right over those whom they have banished. Perseus argues well in Livy,2To what Purpose is it to ordain one to be banished, if there were no Place allowed for his Refuge? And Aristides3 calls, To receive the Banished, a Right common to all Mankind.
2. But4 we have alreadyc proved, that it is not lawful to receive whole Towns, or any great Multitudes, who made a considerable Part of the State from whence they came: Nor those who are engaged by Oath, or otherwise, to continue in the Service, or under the Slavery of him whom they have quitted. But we have mentionedd above, that the like hath been introduced among some People, by the Law of Nations, concerning those who have been made Slaves by the Chance of War; and also concerning the delivering up of such who are not banished, but fly from Justice, I have treated ine another Place.
XLII.How War may be ended by Lots.XLII. To decide a War by Lots is not always lawful, but only then, when we have a full Propriety1 in the Thing disputed for: For the State is more strictly ob-<707>liged to defend the Lives, Chastity, and such like of the Subjects; and the King also is more strictly obliged to consult the Safety of the State, than to omit those Means which are most natural to his own and others Security. But yet, if he that is unjustly assaulted, shall, upon due Examination, find himself too weak to make any considerable Resistance, he may reasonably refer his Case to Chance, that by exposing himself to an uncertain, he may escape a certain Danger, which of the two Evils is the least.
XLIII.How by a set Combat, and whether it be lawful.XLIII. 1. Here follows a Question much controverted, viz. whether it may be lawful to decide a War by a Combat of one of each Side,1 as that of Aeneas and Turnus,2Menelaus and Paris; or between two of either Party, as that between the Aetolians and Eleans; or between three of a Side, as between the Roman Horatii and the Alban Curiatii; or between three hundred on each Side, as that between the3Lacedemonians and Argives.
2. If we only respect the external Right of Nations, no Doubt but such Combats are lawful, for that4 Right gives a Man Leave to destroy his Enemy how he can; and if the Opinion of the old Greeks, Romans, and other Nations, were right, that every Man had an absolute Power over his own Life, then those Combats are likewise reconcilable to internal Justice. But wea have several Times said, that this Opinion is repugnant to right Reason and GOD’s Commands. We haveb elsewhere proved5 by Reason, and the Authority of Holy Scriptures, that he offends against Charity who kills a Man, for those Things which he can well spare. To which we shall add, that he who sets so small a Value upon his Life, which GOD hath given him as a great Blessing, sins against GOD and his own Soul. If the Thing disputed for be worthy of a War, as the Preservation of the Lives of many innocent Persons, we ought to endeavour it to the utmost of our Power; but to make use of a set Combat, purely as the Trial of a good Cause, or as an Instrument of Divine Judgment,6 is vain and superstitious.
3. There is but one Thing that can render such a Combat innocent and lawful, and that but on one Side,7 when otherwise it is highly probable that he who prosecutes an unjust Cause should be the Conqueror, and thereby cause the Destruction of many innocent Persons; he cannot then be any Ways blamed, who undertakes a Combat on this Account, wherein he has most probable Hopes of Success. And this is also true, that many Things which are not rightly done, may be by others, tho’ not really approved, yet permitted, in Order to prevent greater Mis-chiefs, that<708> could not otherwise be avoided; as in many Places8 Usurers and Prostitutes are tolerated.
4. What therefore we havec said before, when we treated of the Means of preventing a War, if two Persons that dispute about a Kingdom, are willing to try it by single Combat, the People9 may safely allow it, that a greater Calamity which threatens them may be prevented: We may say the same, when it is to concludea War; as Cyrus10 challenged the Assyrian King. And Metius, in Dionysius Hali carnassensis,11 declares, that it is not unreasonable, if the Dispute be not concerning the Power and Dignity of the Nation, but of the Princes themselves,12 that they only should decide the Controversy by their own Swords. Thus we read, that the Emperor Heraclius sought a single Combat with Chosroez, Son to the King of Persia.
XLIV.Whether the Fact of the King does here oblige the People.XLIV. They who thus refer their Cause to the Trial of a Combat, may indeed lose their own Right, if they have any, to the Kingdom disputed for; but they cannot make over a Right to another, who has none of his own, to those Kingdoms which are not patrimonial. Therefore to make the Agreement valid, there is a Necessity to have the Consent1 of the People, and of Persons already born, that have any Right to the Succession. And even as to Fiefs2 that are not free, the Consent of the Lord, or Superior, is absolutely necessary.
XLV.Who is to be judged the Conqueror.XLV. 1. Often in such Combats it is disputed1 which is the Conqueror. They cannot be reputed conquered, unless the whole Party on one Side be slain or put to flight.2 So in Livy, he that retreats within his own Borders, or into his own Towns, is to be esteemed vanquished.
2. Those three famous Historians, Herodotus, Thucydides, and Polybius, furnish us, each of them, with an Example of Disputes concerning Victory. The Case related by the first, respects only set Combats; but he that rightly considers the Matter will find, that in all those Combats neither Party had a real Victory. For<709> the Argives were not put to flight by Othryades, but marched off in the Night, supposing themselves Conquerors, and with a Design to carry the News to their Countrymen. Neither did the Corcyreans defeat the Corinthians; but the latter, after having fought with Advantage, seeing a strong Fleet of the Athenians near, without hazarding an Engagement with them, retreated in good Order. Lastly, Philip the Macedonian had indeed taken a Ship of Attalus, forsaken by those of her own Party, but did not rout the whole Fleet: Therefore, (as Polybius observes) he rather behaved himself like a Conqueror, than really thought himself so.
3. But those Things, as gathering the Spoils,3 giving Leave to bury the Dead, and offering Battle a second Time; which, both in the abovementioned Authors and in Livy, you may find set down as Tokens of Victory, prove nothing of themselves, but as they may be attended with other Indications of the Enemy’s Flight. And certainly, in a Doubt, the strongest Presumption is, that he who retreats runs away; but where there are no positive Proofs of Victory, the Case is just as it was before the Battle, and so they must either pursue the War, or come to a new Agreement.
XLVI.How War may be ended by Arbitration; and here Arbitration to be understood without Appeal.XLVI. 1. Proculus1 tells us, that there are two Sorts of Arbitrations, one whereof he makes so absolute, that its Sentence must be obeyed, whether just or unjust; which, he says, takes Place when the Arbitration is founded on a Compromise. The other is, when the Judgment2 of the Arbitrator has Force only so far as is conformable to what an honest and equitable Person ought to pronounce. Of which we have an Example in the Decision of Celsus,3If a Slave made free shall swear (says he) to do what Services his Patron shall require of him, the Demands of his Master shall be no farther obligatory than consists with Reason and Equity. But this Interpretation of an Oath, tho’ it may have been allowed by the Roman Laws, yet it is not agreeable to the plain Sense of the Words simply taken; but this holds very true, that the Word Arbitrator may be taken in both Senses, either as a Mediator only, such as were the4Athenians, between the Rhodians and Demetrius; or for an absolute Judge, whose Decree must be obeyed. And it is in this Sense that we here take it; as also we havea done before, when we treated of the Means to prevent a War.
2. Tho’ even against such Arbitrators, to whose Judgment both Parties have promised to stand, it may be provided by the Civil Law, as in some Places it is, to appeal from it, and exhibit Bills of Complaint;5 yet this cannot be between Kings and Nations. For here can be no superior Power, which may either hinder or disannul the Obligation of a Promise, so that their Sentence must stand, whether just or unjust; to which we may rightly apply that of Pliny,6Every Man makes him the supreme Judge of his own Cause, whom he has chosen Umpire. For it is one Thing to speak of the Duty of an Arbitrator, and another of the Obligation of those who have engaged by Promise to stand to their Arbitration.<710>
XLVII.Arbitrators in doubtful Cases bound to the Equity.XLVII. We must consider, in the Duty of an Arbitrator, whether he be chosen under the Notion of a Judge, properly so called, or whether a more extensive Power be given him, which, according to Seneca, is in some Manner essential to every Arbitration.1A good Cause, says he, had better be referred to a Judge than an Arbitrator, because the Judge has a constant Rule and Orders to proceed by, which he must not transgress; but the other having full Liberty to judge according to his Conscience, may retrench or add something, and pronounce Sentence, not according to the rigorous Laws of Justice, but as Humanity and Piety shall direct. And Aristotle2 reckons it, The Duty of an honest Man, rather to go to an Arbitrator than a Judge; giving this Reason for it, For an Arbitrator respects that which is equitable, the Judge that which is legal; and for that Purpose the Use of Arbitrators was invented that Equity may prevail. For Equity, in this Place, does not properly signify, as elsewhere, that Part of Justice which restrains the Generality of the Terms of a Law, according to the Intent of the Law-maker, (for even this is the Judge’s Charge) but every Thing which is better done than not done, tho’ not according to the strict Rules of Justice, properly so called. But such Arbitrators, as they are frequent among private Persons, that are Subjects to the same State; and are particularly recommended to Christians, by the Apostle St. Paul, 1 Cor. vi. so, in doubtful Cases, so large a Power is not supposed to be granted them. For when there is any Obscurity, we are to follow3 that Side which gives the least Extent to the Things in Question. But especially this is to be observed between sovereign Princes, who having no common Judge are presumed to tie up the Arbitrator to those strict Rules which Judges are generally confined to.
XLVIII.Arbitrators ought not to judge of Possessions.XLVIII. But this is to be observed, that Arbitrators chosen by a People, or sovereign Power,1 are to give Sentence of the principal Matter, but not of the Possession,2 for Judgments of Possessions belong to the Civil Law: By the Law of Nations, the Right of Possession follows Property; therefore till the Cause is tried, no Innovation is to be made, both to avoid Prejudice, as also because the Recovery of those Things is difficult. Livy, in his History of the Arbitration between the Carthaginians and Masinissa, says,3The Deputies did not change the Right of Possession.
XLIX.How far the Force of a pure Surrender extends.XLIX. 1. There is another Way of submitting to the Judgment of one in Order to terminate the War, which is to give the Enemy a full Power to dispose of us; whereby1 we surrender at Discretion, and become subject to him to whom we surrender. The Greeks call it† ἐπιτρέπειν τὰ καθ’ αὑτὸν. Thus the Aetolians were asked, in Livy, whether they would submit themselves to the Discretion of the Romans. This was the Advice of L. Cornelius Lentulus, as related by Appian, about the End of the second Punick War, concerning the Affairs of the Carthaginians.2Let the Carthaginians, says he, surrender at Discretion, as the Conquered use to do, and as others have done formerly; then we shall see what we have to do; they will then take kindly of us whatever we grant them, since they cannot consider it as the Effect of a Treaty concluded with them. Now this makes a great Difference: For whilst we enter into Treaties with them, they will always have some Pretence to break them, alledging, that they had been wronged in some Part of them. For since many Things are capable of a double Interpretation, there will always remain Room for a<711> Dispute: Whereas, if they surrender, and we disarm them, and become Masters of their Persons, they will then see that they have nothing properly their own; they will humble themselves, and whatsoever they shall receive from us, they will look upon as of meer Grace and Favour.
2. But here we must also distinguish, what the Vanquished ought to suffer, and what the Conqueror may do, either in Strictness, or without transgressing some Duty, or without exacting what is unworthy of him. The Conquered having yielded himself, must suffer any Thing at the Will of his Conqueror, as being now in Subjection; and if we respect the3 external Right of War, they have nothing but what may be taken from them, their very Lives and personal Liberty, much more their Goods, whether publick, or belonging to private Persons. Livy tells us in another Place,4 that The Aetolians having surrendered at Discretion, were afraid lest they should be ill-used in their Persons. We have citeda in another Place, When all Things are surrendered to the Conqueror, it depends on him to take away or to leave what he pleases. To this agrees that of Livy,5It was the antient Custom of the Romans, when they would not make any Treaty, either of Peace or Friendship with a People, to punish them by Arms, till they had surrendered themselves with all their Right, divine and human, given Hostages, delivered up their Arms, and received Garrisons into their Towns. And even sometimes those that yielded themselves might be killed, as we have shewn inb another Place.
L.The Duty of the Conqueror, with Respect to those who thus surrender.L. 1. But the Conqueror, that he may do nothing unjustly, ought first to take Care that no Man be killed, unless for some capital Crime; so also, that no Man’s Goods be taken away, unless by Way of just Punishment.1 And even by keeping within these Bounds, as far as his own Security will permit it, it is honourable (to a Conqueror) to shew Clemency and Liberality, and sometimes even necessary, by the Rules of Virtue, according as Circumstances shall require.
2. Admirable are the Conclusions of those Wars which are finished with a general Pardon, as I havea said in another Place. Thus pleaded Nicolaus the Syracusian, in Diodorus,2They surrendered themselves up, with their Arms, trusting to the Mercy of the Conquerors; it would then be an eternal Shame, that they should be deceived in their Opinion of our Clemency. And again, What Grecian ever condemned them to barbarous Punishment, who yielded to the Mercy of the Conqueror? And thus Octavius Caesar, in Appian, speaks to L. Antonius, coming to surrender himself,3If you had come purely to treat with me, you should have found me a Conqueror highly incensed at your Actions; but now you come to surrender yourself, your Friends, and your Army to our Discretion, you have disarmed my Anger, and taken from me the Power which you would have been forced to give me, if we had made an Agreement together; for upon considering what you ought to suffer, and I to grant, I shall prefer my Honour to Revenge.
3. We often meet in Roman Histories4 with these Expressions, Tradere se in fidem, To yield themselves to the Faith. Tradere in fidem & clementiam, To yield<712> to the Faith and Clemency. So in the thirty-seventh Book of Livy, He gave a gracious Audience to the neighbouring Embassadors, that came to surrender their States to the Faith of the Romans. And in the forty-fourth Book, Paulus earnestly desiring that he might be allowed to surrender himself, and all he had, unto the Faith and Clemency of the People of Rome. But it must be understood, that by these Words is meant an absolute Surrender:5 And that the Word Fides in these Places signifies nothing but the Probity of the Conqueror, to which the Conquered yields himself.
4. There6 is a remarkable Story in Polybius and Livy, of Phaneas, an Aetolian Embassador, who, in his Speech to the Consul Manius, said these submissive Words, that The Aetolians did freely surrender themselves, and all they had, to the Faith of the People of Rome. Which when he had affirmed again to the Consul, who asked whether that was really the Design of the Aetolians; the Consul demanded that the chief Authors of the War should be immediately delivered up to him. Phaneas presently replied,7 We surrender ourselves up to your Faith, not unto Slavery: And added, that it was not the Custom of the Greeks to exact such a Thing as he commanded the Aetolians to do. The Consul answered, he valued not what the Custom of the Grecians was; that, according to the Custom of the Romans, he had an absolute Power over those who had surrendered themselves by publick Deliberation; and presently ordered the Embassadors to be laid in Irons,8Do ye, having surrendered yourselves to our Faith, pretend to teach us what in Duty and Honour we should do? as Polybius has it. From which Words it is plain, what he to whose Faith any People have surrendered themselves, may do with Impunity, and without violating the Law of Nations. However, the Roman Consul did not make Use of this Power, but dismissed the Embassadors, and permitted the Aetolians to have a new Consultation in their Assembly.9 Thus the People of Rome are said to have answered the Falisci: That they had been informed the Falisci had yielded themselves, not to the Power, but the Faith, of the Romans. And of the Campanians, we read,10 that they had submitted absolutely, and not by any Agreement.
5. But concerning his Duty to whom the Surrender is made, that of Seneca11 is very applicable, Clemency has an unlimited Power to judge: It is not tied down by the Forms of Law, but pronounces according to Equity: It may both absolve and condemn, as it thinks fit. Neither does it signify much how the Person surrendering expresses himself, whether he yield to the Wisdom, Moderation, or Mercy of the Conqueror, for they are all but Compliments, the Reality of the Matter is, the Conqueror becomes absolute Master to do what he pleases.
LI.Of a conditional Surrender.LI. But yet there are also conditional Surrenders, which are made either in Favour of private Persons, as when1 the saving their Lives, their personal Liberty, or<713> some of their Goods2 be expressly stipulated; or in Favour of the whole Body of People, whence may result a mixt Government, of which wea have treated in another Place.
LII.Who may and ought to be given for Hostages.LII. To publick Treaties are sometimes joined Hostages and Pledges, which are a Sort of Accessory. Hostages (we havea said) are either such as freely give themselves, or are given by him that hath the sovereign Power. [[1 For he that is possessed of the supreme civil Power, has a Right both over the2 Actions and the Goods of the Subjects; but the Prince, or State, shall be obliged to make Satisfaction to him or his Friends, for any Losses which he may thereby suffer. And if it be indifferent to the State, which, of several Persons, goes as Hostage, it is best to decide that by Lots; but the Lord of a Fief has not this Right over his Vassal, unless he be also his3 Subject; for the Homage and Obedience that he owes him, does not reach so far.]]
LIII.What Right is given over Hostages.LIII. We have already said, that a Hostage may be put to Death by the external Right of Nations, but not by the internal, unless he himself be guilty of a capital Crime. Neither can they become1 Slaves; but they may even by the Right of Nations enjoy, and leave their Goods to their Heirs. Tho’ it is provided by the Roman Law, that their Goods2 should be confiscated to the Publick.
LIV.Whether Hostages may lawfully escape.LIV. The Query is, whether a Hostage may lawfully Escape? And certainly he may not; if at first, or since, he hath engaged his Word (in Order to have a little more Liberty) that he would not; otherwise, it does not seem to be the Intent of the State that sent him,1 to oblige their Subject from making his Escape, but to<714> allow the Enemy to secure him as he pleased: And thus may the Fact of Clelia be defended. But tho’ she had not offended in doing it, yet the State could not2 receive and detain their Hostage; whereupon Porsenna declared,3If they did not send back his Hostage, he would take it as a Breach of the Treaty. Then4The Romans immediately restored her, according to Covenant, as a Pledge of the Peace.
LV.Whether a Hostage may be lawfully detained upon any other Account.LV. The Obligation of Hostages has something odious in it, both because it is contrary to Liberty, and because it arises from the Fact of another: So that we are here to explain the Sense of the Terms in a Manner that restrains, as much as possible, such an Engagement. And therefore, they who are delivered Hostages on one Account, cannot be detained on another: Which must be taken thus, provided any other Promise in Question was made, without an Engagement at the same Time to give Hostages; but if we have already broke our Faith in any other Case, or a just Debt be contracted, then the Hostage may be retained, yet not as a Hostage, but by the Law of Nations,a whereby Subjects may be retained Prisoners for their Sovereign’s Debts, κατ’ ἀνδροληψίαν, by way of Arrest, or Reprisal. Which however may easily be prevented, by inserting an express Clause, that the Hostages shall be1 restored, when that shall be performed for which they were given.
LVI.Upon the Death of the Principal, the Hostage to be free.LVI. He that is delivered as a Hostage only, to release either a Prisoner or another Hostage, if this die the other is released; for by his Death all Right of Pledge dies with him, as Ulpian has said, in the Case of a ransomed Prisoner: Wherefore as in Ulpian’s1 Case, the Ransom ceases to be due by the Death of the Person, in whose Room it had been substituted, so in this Case, the Person substituted cannot be here detained. Therefore the Demand of Demetrius to the Roman Senate to be dismissed, was not unreasonable, As being a Hostage for Antiochus, he being dead, he ceased to be so, says2Appian; and Justin out of Trogus,3Demetrius being a Hostage at Rome, as soon as ever he heard of the Death of his Brother Antiochus, went directly to the Senate, and told them he came thither as a Hostage for his Brother, being alive, but now he was dead he could not tell whose Hostage he was.
LVII.The King dying, whether the Hostage may be retained.LVII. But if the King who made the Covenant die, shall his Hostage still be detained? That depends upon what we havea already said, whether the Treaty were personal or real. For Accessories cannot justify us in receding from the general Rule in the Interpretation of Principal Acts, whose Nature they themselves also ought to follow.
LVIII.Hostages may be principally obliged, and one of them is not bound for the Fact of another.LVIII. By the Way we must add this, that Hostages sometimes are not a bare Accessory of the Obligation, but really the1 principal Party; as when by Agree-<715>ment, a Person having engaged himself for the Fact of another, and being bound for Damages and Interest, in Case what he promises is not executed, gives Hostages in his stead: And this seems to have been the Meaning of the Treaty concluded near the Furcae Caudinae, as we havea remarked elsewhere. But the Opinion of those who maintain, that2 Hostages may stand engaged for the Fact of one another, even without a mutual Consent, is not only severe but unjust.
LIX.What Obligation lies upon Pledges.LIX. Pledges have some Things common with Hostages, and some peculiar to themselves. What they have in common is, they may be detained for another1 Debt at present due, unless Faith be given to the contrary. The Peculiar is, that what Contract soever is made concerning these, is not so strictly taken as that concerning Hostages. For this Act is not in itself so odious, because it is natural that Things2 should be kept, not Men.
LX.The Right of Redemption, how lost.LX. We have saida elsewhere, that no Time can prejudice the Right of Redemption, if that be performed for which the Things were first deposited. For that Act which has an antient and manifest Cause, cannot easily be believed to proceed from a new one; therefore tho’ the Debtor has left the Pledge for a very long Time in the Hands of the Creditor, it is presumed he has done it, by supposing that the antient Contract still subsisted, and not because he renounced his Right; Unless some evident Conjectures necessarily require another Interpretation.1 As if when a Man was ready to have redeemed it, but met with some Impediment, and afterwards kept Silence so long as to give Reason to suppose that he had voluntarily abandoned it.
[a ]B. 2. Ch. 15. §3.
[1 ]In Statu vere regio, says the Author. That is to say, if the King be absolute, and not obliged by the fundamental Laws of the Kingdom, to consult the People, or the Nobles of the State upon making War or Peace.
[a ]See B. 1. Ch. 3. § 24.
[1 ]See Guicciardin, Hist. Lib. XVI. and Lib. XVIII. where he treats several Times of this Case. Grotius.
[2. ]So that, according to our Author, when the Kingdom is patrimonial, the King, tho’ a Prisoner, can make Peace, in the same Manner as he may treat validly in regard to his private Estates, tho’ he holds the Kingdom only by an usufructuary Title. Our Author supposes without doubt, that the King, who is a Prisoner, is not become a Slave by the Right of War, or that he, who has taken him, either expressly or tacitly has renounced his Right. The question is otherwise useless, because Estates are acquired with the Person, according to what has been said above, Chap. VII. of this Book, § 4. and Chap. VIII. § 1. Num. 3.
[b ]Ch. 23.
[3. ]What Lucan says may be applied here, that during the Time the Dictator Camillus was at Veii, Rome also was there, tho’ the Gauls were Masters of the City:
See Chassanaeus, De Gloria Mundi, Part V. Consider. IX. Grotius.
[4. ]Our Author supposes here again without doubt, that the King has been unjustly expelled his Dominions. Otherwise, as he would be fallen from the Sovereignty, he would be equally incapable of making Peace, which is one of the most essential Parts of it.
[5. ]Sententiam ne diceret, &c.Cicero, De Offic. Lib. III. Cap. XXVII.
[a ]B. 2. Ch. 5. § 17.
[1 ]Which he makes Aristenus, Praetor of the Achaeans, say: Ubi semel decretum erit, omnibus id, etiam quibus ante displicuerit, pro bono atque utili foedere defendendum. Lib. XXXII. (Cap. XX. Num. 6.)
[2. ]Antiq. Rom. Lib. XI. (Cap. LVI.)
[3. ]Singulos enim, integrâ re, dissentire fas esse: Peractâ, quod pluribus placuisset, cunctis tenendum. Lib. VI. Epist. XIII.
[1 ]But tho’ the Act of Alienation has not been previously declared entirely null, it is however no less so. The Nullity follows necessarily, from the King’s Power being limited in that Respect by the very Nature of his Kingdom; and much more, if in conferring the Sovereignty, it was expresly stipulated, that he should not alienate any Part of it. It is a different Question to know whether the Alienation remaining without Effect, the King, as for his own particular Part[[, be not held to make the other contracting Party some Amends, admitting he can do so in a Manner not prejudicial to the Interests of his Subjects, or the State. See the following Note.]]
[† ][[The original English text reads “be,” which is clearly a misprint—the Latin is lege publica, “by a public” (or fundamental) “law.”]]
[2. ]It suffices to say, that the other Party may, and generally do know, that it is not in the King’s Power to treat: In which Case they can only blame themselves. The Reason alledged by our Author, may afterwards be put to account, but without its being necessary to found it upon a meer Supposition of a tacit Consent of Nations. For the rest, if we suppose that the Party, with whom the King has treated, could not know, that the Alienation was not in his Power; I see no Reason, why in such Case they may not have a Right to come upon the King’s patrimonial Estate for Damages and Interest; in the same Manner as those, who have treated with a publick Minister, acting without Authority, may exact this Amends from him, according to the Principles laid down by our Author himself elsewhere, B. II. Chap. XV. § 16. Num. 6. But farther: In a doubt, or when the King has alienated some Part of his Kingdom, for very evident Reasons of Necessity or Utility, it may be presumed, that the People have given their Consent, according to what has been also advanced above, B. II. Chap. VI. § 8. 11. and Chap. XIV. § 12.
[3. ]See what has been said above, B. II. Chap. VI. § 6, 7. with the Notes.
[4. ]In which Case therefore he may indeed alienate the Whole Kingdom, but not a Part of it.
[a ]B. 2. C. 19. § 10, &c.
[1 ]See Reinking. B. I. Class. III. Cap. V. Num. 30. and compare this with what has been said above, B. II. Chap. XIV. § 7. and 12. Grotius.
[2. ]But see what we have said upon B. I. Chap. III. § 11. Num. 1.
[3. ]I add the Words, upon this Condition, which necessarily must be understood according to the Thought of our Author, who expresses himself clearly in another Place, where he has treated of the same Case: Ut paterfamilias latifundia possidens,Neminem alia legesuas terras habitantem recipere velit, &c. B. I. Chap. III.§ 8. Num. 2. This gives me Occasion to defend him against a very sour and ill-grounded Criticism of the late Mr. Cocceius, in a Work published some little Time after his Death, intitled, Autonomia Juris Gentium, &c. He says there, (Cap. XII. § 5.) Our Author supposes a Master of a Family, who, possessing a vast extent of Land, entertains a great Number of Servants and Workmen for the culture of them. This is not, adds he, a State, but a great Family; this Man is not a King, but a rich private Person: And Grotius confounds in this Manner the Head of a Family with an absolute Prince, which is very absurd. But is it not more absurd, to make so judicious a Manas Grotius say a Thing so contrary to the plain Sense of his Words, which import not a simple Contract of Hire, as it is supposed without Reason, but a Convention by which the Head of a Family in Question grants Lands, upon Condition that the Inhabitants of them shall acknowledge him for the future as their absolute Sovereign? He afterwards maintains, that admitting such a Convention, the new King would have no Right to alienate his Kingdom, and founds his Reason upon this, that there neither is nor can be, as is pretended, any patrimonial Kingdom. This is not the proper Place to examine the Reasons he brings for this Doctrine, nor to shew their Weakness. Besides, I have already said, B. I. Chap. III. § 2. Note 4. what we ought to think upon this Head, to avoid vicious Extremes.
[a ]Gail. 2. Obs. 57.
[b ]B. 1. Ch. 6. B. 2. Ch. 14. §7, 8.
[a ]B. 3. ch. 6. §3.
[b ]Ch. 10. § 5.
[1 ]There are some, who say, that War being deemed to be undertaken by the Consent of all the Citizens, every particular Person is also deemed to have exposed himself voluntarily to support all the Losses, which he may sustain in Consequence of the Acts of Hostility, especially in a War purely defensive; and therefore, that the State is not held to reimburse any one; unless it has received Advantage from what private Persons have lost, or unless the Damage was sustained by such Persons, in Consequence of the Hazards they run by Order of the Sovereign. For the Rest, it is so much the worse for those that have suffered, even tho’ they have suffered more than others. But the Consequence is not just. This tacit Consent of the Citizens to the undertaking of a War, implies indeed a Will to suffer Loss, when they cannot do otherwise; but not if there be any way to make them Amends, either fully, or in Proportion to what they have suffered more than their Fellow-Citizens, who were equally obliged to it. The one does not hinder the other.
[2. ]There may be another considerable Reason for this, which is the Difficulty of estimating, and comparing together the Losses of every one. Besides, if private Persons are rich, and the Publick poor, as it sometimes happens, this sufficiently excuses the State from making any Amends.
[1 ]Compare this with what has been said above, B. II. Chap. X. § 1. Num. 5. and Chap. XIV. § 8.
[2. ]Our Author understands thereby the eminent Domain of the State, of which the lawful Use is founded upon the publick Utility, and consequently forms an Exception included in Property, as in every other Right of private Persons.
[a ]B. 3. ch. 2.
[a ]B. 2. ch. 16. § 11, 12.
[1 ]This is a natural Consequence of the Thing, or of the Intention of the contracting Parties reasonably presumed. For, as each believes himself in the Right, each no doubt is for making his Condition as good as he can, and at least as advantageous as that of the other Party. So that the Distinction of favourable and odious, of which we have elsewhere shewn the Usefulness and Want of Solidity, is not more necessary in this Place.
[2. ]See for Instance Thucydides IV. 65. which I have already cited above, upon B. II. Chap. IV. § 8. Num. 3.
[1 ]It is in Chap. IX. of this last Book, § 4. Num. 1. where the Law has been quoted. The Reader may see what I have said upon it, Note 3.
[2. ]See the Law of the Digest quoted above at the End of Chap. I. of this Book. It is also sometimes agreed by Treaty of Peace, that such as would go over from one Party to the other, shall not be received. See the Articles of Peace concluded between the Emperor Justinian and Chosroez King of Persia, in the History of Menanderthe Protector, (Chap. II.) Grotius.
[a ]B. 3. ch. 6. §4.
[3. ]De Corona, p. 316. B.
[4. ]Consult Pufendorf, Law of Nature and Nations, B. VIII. Chap. VI. § 19.
[b ]See above, Chap. 7. § 4.
[5. ]This is our Author’s Meaning, whose concise Expression has been very ill understood by the learned Gronovius. Suppose, for Instance, that a Person has the Use and Profits, or the Fief of a Land, if the Enemy seizes this Land, tho’ he does not take the Lord of the Fief or Tenant Prisoner, as neither the one nor the other can exercise his Right but in a conquered Country, their Liberty is of no manner of Service to them; the Right then passes over to the Enemy, without the Person to whom it adhered, and becomes real from personal as it was before. So that, after a Treaty of Peace, this Sort of Goods continue, as well as others, to the Party who retains the Lands, to which they adhere.
[1 ]The Possession, here intended, is rather the Possession of a Country in general, than that of private Persons. So that in regard to private Persons, Things ought to stand upon the same Foot, as if the Possession had never been interrupted by War. And this would take Place, tho’ it were even supposed, that the private Person in question has been unjustly dispossessed, in what manner soever, by a Subject of the other State, with which Peace has been concluded. For as this Injustice is supposed to have happened before the War, he who has suffered it, may demand Reparation in the same Manner as he might have done at first.
[1 ]But, says Ziegler, admitting even that such a People has not submitted to the Dominion of either Party, unless by Force or Fear, I see no Reason, why they can pretend to be reinstated in their first Condition, by Virtue of the Interpretation of that general Clause; especially if it is of no Importance to the other Party, whether that People be reinstated in the Possession of their Liberty or not. I answer for our Author, that he supposes here, as appears from the Examples which follow, a People who were the Ally of the contrary Party to that they have surrendered to, or who were concerned in some other Manner in the War: Otherwise the Question would be entirely impertinent. Now upon this Foot, such a People may well be included in the general Clause, according to which all Things are to be reinstated in their first Condition; if the State to whose Power they have submitted, have no other Title but an Act of Hostility; but not if they have submitted voluntarily: For the Clause in question regards only Acts of Hostility; and the Party, who has submitted voluntarily, has by that alone renounced all Benefit of a future Treaty of Peace.
[2. ]Thucyd. Lib. V. (Cap. XVII. Edit. Oxon.) The Historian had already said the same Thing of the same City in another Place, Lib. III. (Cap. LII.) Grotius.
[3. ]Thucyd. Ubi supra V. 17.
[4. ]Quae si maneret, captarum tamen urbium ea lex est. Thessaliae civitates suâ voluntate in ditionem nostram venerunt.Livy, Lib. XXXIII. Cap. XIII. Num. 12.
[1 ]That is to say, Damages caused to private Persons of the other State at War, by lawful Acts of Hostility; and not those, which private Persons may have occasioned of their own Head, or under the Pretext of War against the Subjects of the Enemy, or those of the same State. The late Mr. Cocceius in a Dissertation, De Postliminio in Pace, Sect. I. has advanced contrary to the Opinion of our Author, and several others whom he quotes; that by simply making Peace, the Parties do not hold themselves reciprocally discharged from the Damages occasioned on both Sides, and that an express Clause of general Amnesty is necessary to that Effect. He founds his Opinion on what follows. I. A Treaty of Peace, says he, is nothing more in itself than a Transaction upon what occasioned the War, and consequently upon a publick Interest, in regard to which if there be any Thing given up that concludes nothing in respect to the Interest of particular Persons who have suffered Damage from the Enemy during the War. II. This Damage, adds he, ought naturally to fall only upon those, who had no just Cause for making War. Now in a Treaty of Peace, nothing is determined as to the Justice of the War, each continuing in his own Opinion as to that Point. III. From whence it arises, that the Right of Postliminii subsists even after such a Peace, according to Law XII. of the Digest, Princ. De Captiv. & Postlim. IV. It is to avoid this Inconvenience, that in Treaties of Peace, the Clauses, by which a general Amnesty is stipulated on both Sides, are so express and extensive. But this general Amnesty has a necessary Connection with the intent of a Peace, because the contrary might make Room for a new War. And the very Circumstance of not deciding upon the Justice of the Cause, proves, that the Damages, occasioned in Consequence of Acts of Hostilities, ought to be deemed by both Parties as justly sustained. The Law quoted is only a civil Law of the Roman People, upon a particular Case. See above, Chap. IX. of this Book, § 4. Note 3. and 11. Nor does the last Reason prove any Thing, since Things are often expressed which could not fail of being understood, in which Case they are only recited for the Sake of greater Precaution.
[1 ]For Instance, if before the War, a Thing had been sold and delivered to some Merchant of the Enemy’s Country, and that Merchant had not paid for the Goods. The Examples alledged by Gronovius in this Place are entirely misapplied, because they suppose the Creditor and Debtor are both of the same State.
[2. ]Hanc enim ob causam maxime, ut sua tenerent, Respublicae Civitatesque constitutae sunt. De Offic. Lib. II. Cap. XXI.
[1 ]The Example is not well applied, says Gronovius, here. For these Merchants were not thrown into the Sea before the Peace was concluded, but some time after the End of the first Punick War. So that, as soon as the Affair came to the Knowledge of the Romans, they were for avenging it as an Infringement of the Treaty, and declared War against the Carthaginians, who, to avoid it, gave them up Sardinia. But our learned Critick himself without Reason supposes, that the Question here relates to Things committed during the War, but unknown at the Time the Treaty of Peace was on Foot. There is no Difficulty in regard to Things of this Kind. For who can know all the Acts of Hostility, that have been committed during the Course of a War? So that by the Parties holding themselves reciprocally discharged from all the Mischief they have done each other during the War, they always understand, as well what they do not know, as what they do. The false Application of the Example therefore consists, only in the Crime of the Carthaginians not being committed before the War, but after the Peace made and concluded.
[2. ]Antiq. Rom. Lib. III. Cap. VIII. p. 138. Edit. Oxon.
[3. ]Orat. Plataic. p. 299. Edit. Henr. Steph.
[1 ]Antiq. Rom. Lib. III. Cap. IX.
[1 ]It is, because then the Condition of the contracting Parties being unequal, there is great Reason to believe, that he, to whose Disadvantage the Inequality is, has pretended to engage himself as little as possible: And it was the other’s Business, who was to have the Benefit of it, to have the Thing explained in as clear a Manner as possible.
[2. ]Each Party ought, and generally does, Interest itself more in the Restitution of Persons than Effects. Hence, in a doubt, they are supposed to have intended, that the Prisoners should be restored, for Instance, before all other Things, animate or inanimate, moveable or immoveable.
[3. ]Lands are commonly of much greater Value than moveable Things: And War is more frequently made for them. Hence it is supposed with Reason, that the former were more immediately the Object of Consideration than the latter.
[4. ]What the State has taken is also generally of much greater Value than what it has left to private Persons. Besides, it is more easy to be known.
[5. ]It is plain, that the Restitution of this Sort of Things is more easily granted, since in restoring them, nothing is lost that might have been had without that.
[1 ]Ziegler has Reason to say, that if the Party, to whom a Thing is yielded up by the Treaty of Peace, had seized it before, during the War, he ought also to have the Revenues of it for the Whole Time it has been in his Possession, by the Right of War; tho’ the Cession of it gives him a new Title. But the Thing is clear in itself, and our Author intended to speak only of the Case, in which there might be some Difficulty. When a Thing is yielded up, which we had in our Power, as we seem thereby to acknowledge, that those to whom we make such Cession had a Right to it, it also seems first, that we ought to restore the Revenues, which have arisen to us from it, from the beginning of the War to the Conclusion of the Treaty of Peace. But when we only leave the Thing to those who have taken it, the Question is evidently superfluous; because the Possession, supported by the Right of War, secures the Revenue to the Possessor. Nevertheless, in the former Case, the Cession of itself, if rightly considered, has no retroactive Effect with regard to the Revenues. For till the Treaty of Peace, by which the Cession was made, the Right to the Thing yielded up was in Dispute; so that the Party who gives it up, acknowledges no Right in the other, but for the Time to come, and by Virtue of the Cession alone which he makes to him, by a Kind of Transaction. For the rest, that our Author intended to speak solely of this Case, appears from the Example which he alledges. For Sextus Pompeius was not in Possession of Peloponnesus.Appianus Alexandrinus, whom our Author cites in the Margin, speaking before of the Conditions of the Treaty made between Octavius and Mark Antony on the one Side, and Sextus Pompeius on the other, distinguishes clearly Sardinia, Sicily, the Island of Corsica, and some others, which Pompey held at that Time from Peloponnesus, which he was to have besides, p. 713.
[1 ]See Francis Guicciardin in the fifth Book of his History. Grotius.
[1 ]Compare Pufendorf with this Place, Law of Nature and Nations, B. V. Chap. XII. § 9.
[1 ]Pufendorf gives good Reasons for this, Law of Nature and Nations, B. VIII. Chap. VIII. § 4.
[a ]See Albert. Argentin.
[2. ]Our Author has in View what the Decretals lay down with respect to Emphyteote, to whom they grant a small Delay, in regard to the Estates of the Church, after two Years have expired without his having paid Rent. See Lib. III. Tit. XVIII. De Locat. & conducto, Cap. ult.
[1 ]In this Case the strongest generally speaks first: But when Conditions are to be asked the weakest begins. Which Sylla told King Mithridates.Plutarch, in Vit. Sull. (p. 497. C.) Grotius.
[2. ]Est quidem ejus, qui dat, non qui petit, conditionem dicere pacis, &c. [Livy, Lib. XXX. Cap. XXX. Num. 24.]
[3. ]This is determined by the Roman Law: Veteribus placet, pactionem obscuram, vel ambiguam, Venditori, & qui locavit, nocere: In quorum fuit potestate, legem apertius conscribere. Digest, Lib. II. Tit. XIV. De Pactis, Leg. XXXIX. It is indeed the Seller’s Business to tell the Price of his Merchandize:
[4. ]Ethic. Nicom. Lib. VIII. Cap. XV.
[1 ]For when there is no Contravention to the Articles of the Treaty, tho’ a new Occasion of War be given, the Penalty agreed on is not thereby incurred, which was to have taken Place on the Violation of any of the Articles: Nor is the Party offended discharged from his Engagements. However, as Mr. Buddaeus observes in his Dissertation De Contraventionibus Foederum, (Cap. III. § 4.) when a new Occasion of War is given in this Manner, the Treaty of Peace is thereby broken indirectly; and with regard to the Effect, if Satisfaction for the Offence be refused. For then, the Offended having a Right to take Arms in order to do himself Justice, and to treat the Offender as an Enemy, against whom every Thing is lawful; he may also undoubtedly dispense with observing the Conditions of the Peace, tho’ the Treaty has not been formally broken with regard to its Tenor. The same Author also very well observes, that this Distinction can scarce be of Use in these Days, because Treaties of Peace are conceived in such a Manner, that they include an Engagement to live in Amity for the future in all Respects; so that the least Occasion of War, how new soever it be, may be deemed an Infringement of the most important Article of the Treaty.
[1 ](Lib. I. Cap. CXXIII.) A Deputy from the Armenians, in his Speech to Cosroez, King of Persia, said amongst other Things, as Procopius informsus, that they who break the Peace are not always the first in taking up Arms, but those who lay Snares for their Allies, even in the Time of the Alliance. Persic. Lib. II. (Cap. III.) The same Historian makes the Moors speak thus in another Place: “Those who break the Treaty of Peace are not such, as having received manifest Injuries, and made open complaint thereof separate from the Offender: But they are those, who making Profession of their Willingness to observe the Alliance, commit Violence however against their Allies, and thereby render GOD their Enemy. They are not People, who in breaking with an Ally, only carry off their own Effects; but such as by taking away those of others, reduce the lawful Proprietors to the Necessity of exposing themselves to the Dangers of War.” Vandalic. Lib. II. Cap. XI. Ammianus Marcellinus relates, that in the Time of Valentinian, the Romans gave way on Purpose before the Persians, that they might not be the first in committing Hostilities, and thereby give Reason to believe, that they had broke the Alliance; so that they did not come to Blows, till the last Extremity: Operâque consultâ retrocedentes, &c. Lib. XXIX. init.Grotius.
[1 ]The Condition is partly arbitrary, (potestativa) as the Party, with whom the Peace is directly and immediately made, can contribute something, in some Manner or other to hinder his Allies from offending his antient Enemy. But it is casual, as he cannot absolutely hinder them from doing it, if they will not pay any regard to what he says or does for that End, and they are at the same Time in a Condition not to fear him. However as, from his having consented to the Rupture, in case his Allies should commit any Act of Hostility, he seems to have taken upon himself to hinder them from doing so; he has no Reason to complain, when that happens, even tho’ he should have omitted nothing that depended on him. See further, upon the Division of Conditions into arbitrary, casual, and mixt, what Pufendorf says in his Treatise, Of the Law of Nature and Nations, B. III. Chap. VIII. § 4.
[2. ]That is to say, the Plataeans. For when the Lacedaemonians had broke the Peace by seizing treacherously the Citadel Cadmea, the Thebans believed they had a Right to seize the City of Plataea, under Pretext, that having been the Ally of the Lacedaemonians, the act of the latter included also a Rupture with it. See Pausanias, Lib. IX. seu Baeotic. Cap. I.
[a ]B. 2. Ch. 21. § 2. & seq.
[1 ]It is in that Prince’s Speech to the Jews, to exhort them to submit to the Romans: For in representing to them, that they had no Resource; he told them, that eventho’ those of their Nation, who inhabited Adiabene, on the other Side of the Euphrates, should be willing to come to their Aid, the King of the Parthians, in whose Dominions they were, would not permit it. De Bell. Jud. Lib. II. Cap. XXVIII. (XVI. in Latin.) p. 808. B.
[a ]Gel. l. 7. cap. 3.
[1 ]This might be expressed in Latin by the Words of Plautus : De praeda praedam capio. In Trucul. (Act II. Scen. VII. Ver. 15, 16.)
[2. ]He makes Philip King of Macedon say this, Lib. XVII. Cap. V.
[3. ][See the Passage cited above, B. II. Chap. XXV. § 9. Note 2.] The Sabirian Huns fought also sometimes on one Side and sometimes on the other, as Agathias observes, B. IV. (Cap. III.)
[4. ]Sanguini tamen nominique & praesentibus periculis consanguineorum id dari, ut si qui juventutis suae voluntate ad id bellum eant, non impediant. Lib. V. (Cap. XVII.)
[1 ]In this Manner Augustus passed Sentence in favour of Herod against Syllaeus. See Josephus, Antiq. Jud. Lib. XVI. Cap. XVI. Grotius.
[1 ]See Thuanus, Hist. Lib. LXV. upon the Year 1578. There is also something upon this Head, in Franc. Haraeus, Hist. Brabant. Vol. II. upon the Year 1556. Grotius.
[2. ]But see what I have said, upon the Passage cited in the Margin.
[a ]B. 2. Ch. 16. § 13.
[3. ]Cap. V.§ 37. Edit. Oxon.
[4. ]Our Author supposes reasonably, that those with whom we have this Kind of Ties, are not under our Dependence. For if the Injury is done, for Instance, to the Queen, or a Prince, the King’s Son, not reigning himself elsewhere, it is the same as if offered to the King’s Person. See Bodin, De Republic. Lib. V. Cap. VI. p. 951. Edit. Francofurt. 1622. The Roman Law considers an Injury received by the Wife or the Children, as received by the Husband or Father, and gives an Action to the latter in his own Name. See the Receptae Sententiae of the Civilian Paulus, Lib. V. Tit. IV. § 3. and Cujas and Mr. Schulting upon him; as also the Jurisprudentia Papinianea of Anthony Faure, Tit. IX. Princip. II. Illat. XXII.
[b ]B. 2. Ch. 25. §4.
[1 ]Seneca, in Agamemn. Ver. 243.
[2. ]See a fine Example of it in the Treaty of Peace between the Emperor Justinian, and Cosroez, King of Persia; as Menanderthe Protector informs us, (Cap. II.) Grotius.
[a ]See B. 2. Ch. 15. § 15.
[3. ]Lib. V. Cap. LXXIX.
[1 ]As in the Treaty of Peace between the Goths and the antient Franks. See Procopius, Gotthic. Lib. I. Cap. XII. Grotius.
[b ][[sic:a B. 3. ch. 19. § 14.]]
[a ]B. 3. ch. 19. § 13.
[1 ]Nam si cum gente aliquâ, neque amicitiam, neque hospitium, neque foedus amicitiae caussâ factum habemus, &c. Digest, Lib. XLIX. Tit. XV. De Captiv.& Postlim. Leg. V. § 2. Grotius.
[2. ]Post reditum in gratiam, si quid est commissum, id non neglectum sed violatum putatur, nec imprudentiae, sed perfidiae, adsignari solet. Fragm. Orat. pro. Aul. Gabin. apud Hieronym. Apolog. adv. Ruffin.
[3. ]Si quis sic fecit injuriam, &c. Digest, Lib. XLVII. Tit. X. De injuriis & famosis Libellis, &c. Leg. XV. § 35. See the same Title of the Institutes, §3.
[1 ]The famous Legislator Solon ordained, that no Strangers should be received into the Number of the Citizens of Athens, but such as were banished for ever by their Country, or who came to settle at Athens with their whole Families, in order to follow some Employment. Plutarch, in Vit. Solon. (p. 91. E.) King Perseus, as Appianus Alexandrinus relates, said, to justify his giving Refuge to Exiles, that it was the common Right of all Men. Excerpt. Legat. Num. 25. (p. 367. Exc. Ursin.) This common Right is often confirmed, or rendered more strong by Treaties. See the Peace made with Antiochus, in Polybius, Excerpt. Legat. XXXV. and that made between the Romans and Persians according to Menanderthe Protector, (Legat. Justin. Justinian. & Tiber. Cap. II.) as also what Simler says on the Articles of the Confederacy of the Swiss Cantons. The Aradians, whilst the Kings of Syria made War upon each other, obtained this Condition by a Treaty; that they should be permitted to give Refuge to all Syrians who came to take it in their Country; but that they should not expel, or deliver them up against their Will. Strabo, Geogr. Lib. XVI. (p. 754. Edit. Paris. Casaub.) Grotius.
[a ]B. 2. Ch. 5. § 24.
[b ]B. 2. Ch. 5. § 25.
[2. ]Et hercule quid adtinet cuiquam exsilium patere, si nusquam exsuli futurus locus est? Lib. XLII. Cap. XLI. Num. 7.
[3. ]Orat. Leuctr. I. p. 105. C. Vol. II. Edit. P. Steph.
[4. ]See what is said upon that Place.
[c ]Ubi supra, § 24. See Beza, l. 12.
[d ]B. 3. ch. 7. §8.
[e ]B. ii. ch. 21. § 3. &c.
[1 ]Ziegler, and others after him, criticise our Author, without Reason, in this Place, from having taken his Thought wrong. They make him say, that the Method of Lots is only to be used, when the Parties have an absolute Propriety in the Thing disputed for. But had they duly considered the Sequel of the Discourse, they would have found, that Grotius never intended to say so. For he simply admits of a Recourse to Lots, when we are sensible of being too weak to resist, and he makes no Distinction there between the Things, of which the Sovereign has always full Power to dispose, as his peculiar Right, and those which appertain to the Subject, for the Defence of which he has undertaken the War. What misled the Interpreters, was the Expression of the Original, which is a little ambiguous: Sortis aleae subjici belli exitus licite non semper potest, sed tum demum quoties de re agitur, in quam plenum habemus dominium. It seems at first Sight, that these Words, sed tum demum, &c. specify the Case excepted, in which the Method of Lots may be used: But here the semper potest is to be understood; for the Sense is, that it is only in Regard to Things of this Kind, that we always may, if we will, refer the Issue of a War to the Decision of Lots, even tho’ we should do it in Circumstances, wherein it is not prudent to act in such a Manner; because every one may dispose of his own as he thinks fit. Whereas, when the Interest of the Subject is concerned, of which we are not absolute Masters, every other probable Means is to be tried, before we proceed to this, which is in its Nature entirely uncertain. This is our Author’s Thought. It is however not amiss to observe upon this Occasion, how much it concerns an Author, especially when he writes in a concise Stile, to express his Sense with all possible Plainness and Perspicuity: Otherwise he gives Room for such as do not examine Things with sufficient Attention, that is to say, the greatest Part of his Readers, to take his Words in a quite different Meaning from his own, and to ascribe Things to the Writer, which never once entered his Thoughts.
[1 ]See B. XII. of Virgil’s Aeneid, where the Combat is related at Length by the Poet, who, perhaps, invented it: For I know no other Authority for the Fact. There is nothing said of it in the little Treatise, De Origine Gentis Romanae, ascribed to Aurelius Victor : He only says that Aeneas killed Turnus.
[2. ]This is related in the third Book of the Iliad.
[3. ]This Fact is in Theseus, an antient Author, cited by Stobaeus, Serm. VII. See the Miscellanea Laconica ofMeursius, Lib. IV. Cap. XIII.
[4. ]See above, Chap. IV. of this third Book.
[a ]B. 2. c. 19. §5. and c. 21. § 11.
[b ]B. 2. c. 1. § 12, &c.
[5. ]All these Reasons (says Mr. Buddaeus, Jurispr. Histor. Specim. § 23.) either prove nothing, or prove at the same Time, that it is never lawful to venture one’s Life in a Combat of any Kind whatsoever. And this is what Graswinckel has before asserted in his Defence of our Author against Felden, p. 259. See what I shall say presently, in Note 7.
[6. ]This was a superstitious Custom of the antient Germans, who called this Kind of Combats Judicia Dei, or Ordalia. See Francis Hotoman, Obs. III. as also the Dissertation of Mr. Buddaeus, cited in the foregoing Note, § 25. that of Mr. Hertius, De Consultat. Legg. & Judiciis in Specialib. Rom. Germ. Imp. Rebuspubl. § 21. Vol. II. Opusc. 459, 460. and one of Mr. Slicher’s, intitled, De debita ac legitima Vindicatione Existimationis, &c. Printed at Amsterdam in 1717. p. 37. & seq.
[7. ]This Exception shews that the Thing is not bad in itself, and that all the Harm consists in exposing our own, or the Life of others, without Necessity to the Hazard of a single Combat, which would be unlawful, even tho’ done without any Agreement. The Desire of terminating War, which has always such fatal Consequences, even to the victorious Party, is so laudable, that it may even excuse, if not intirely justify, those who engage, either themselves or others, imprudently in a Combat of this Nature. At least it seems to me, that in such Case, those who combat, not merely of their own Will, but by the Order of the State, are entirely innocent; for they are no more obliged to examine, whether the State acts prudently or not, than when they are sent upon an Assault, or to fight a pitched Battle.
[8. ]But there is a great Difference between these Examples and the Case in Question. When Usurers and Courtesans are tolerated, that Toleration of itself implies no Approbation; it is a simple Impunity, which the Law and Magistrates may, and ought often to grant, in Regard to several vicious Things. But set Combats are, by their Nature, such as could have no Effect, without being positively authorised by the State: So that if our Author’s Reasons were good, the State never could, I do not say decree such Combats of their own meer Will, but even permit Champions to fight them, who should offer themselves for that Purpose; because that Permission implies always an Approbation, and is adequate to an express Order.
[c ]See B. 2. ch. 23. § 10.
[9. ]See the foregoing Note.
[10. ]As Hyllus long before challenged Eurystheus. See Euripides in the Heraclidae ver. 804, & seqq.
[11. ]Antiq. Rom. Lib. III. Cap. XII. It appears by what follows, that the Question is not at all determined by our Author’s Principles and Reasons. For the Alban General refuses the Combat of one to one, and chooses rather that three should fight with three; because, says he, the Number Three includes, a Beginning, a Middle, and an End. Which is fine Morality.
[12. ]Thus the Adrianopolitans answered Mahomet, concerning himself and Musa Zeleb, as Leunclavius relates, Lib. XI. In like Manner Cunibert, King of the Lombards, challenged King Alachis.Paul. Warnafred. Lib. V. So Pharnacus challenged the General of the Sauromatae, to try which of them should have the Fortress of Cherso, that their Dispute might not expose a great Number of People to the Dangers of War. Constantine, Porphyrogonnet. Cap. De Castro Chersonis. See an Example of a single Combat for a Kingdom, in Pontanus’s History of Denmark, (Lib. V. p. 151. Edit. Amstel. 1631. where the Champions were Edmund Ironside and Canute) and what Historians say of the Challenges which passed between the Emperor Charles V. and Francis I. King of France.Grotius.
[1 ]Some Commentators say, that this Consent is not necessary, because the King of a Kingdom, not patrimonial, having a Right to make War and Peace, has also, by necessary Consequence, that of terminating War in such Manner as he shall judge most conducive to the Good of the Publick. But the Consequence is not just: For as the fundamental Laws, or rather the Nature of a Kingdom not patrimonial, deprive the King of the Power to alienate validly the Crown, by his sole Consent; by that alone, I say, the Right of making Peace includes an Exception of the Case, in which the Alienation of the Kingdom would be concerned.
[2. ]In feudis non liberis. Our Author uses here the Distinction of Fiefs free and not free, in an improper Sense, as he has done elsewhere. See what I have said B. I. Chap. III. § 23. Num. 2.
[1 ]There is a Verse of Ennius which says, that to be really Victor, even when victorious, it is necessary the Vanquished should confess it.
See Scaliger upon Festus, at the Words Herbam do.Grotius.
[2. ]Pulsique quum in fines suos se recipissent [Aequi] &c. Lib. III. Cap. I. Num. 12. In oppida sua se recepêre, uti sua popularique passi, &c. Ibid. Cap. II. Num. 10.
[3. ]Plutarch says, this Permission, demanded by the Thebans after a Battle, assured the Victory to Agesilaus. In Vit. Agesil. (p. 606. B.) The same Historian observes elsewhere, that those who had obtained Permission to bury their Dead, were deemed, according to the received Custom, to have renounced the Victory, and could not erect a Trophy. In Vit. Niciae, (p. 527. A. B.) Grotius.
[1 ]Arbitrorum enim genera sunt duo, &c. Digest. Lib. XVII. Tit. II. Pro socio, Leg. LXXVI.
[2. ]These Arbitrators, according to the Ideas of Roman Law, are generally chosen by the Parties, to judge and determine something relating to the Engagements of a Contract; whereas the former are taken to terminate a Quarrel.
[3. ]Si Libertus ita juraverit, &c. Digest. Lib. XXXVIII. Tit. I. De operis Libertorum, Leg. XXX. See Cujas, upon Law XLIII. of the Title of the Digest. De verborum obligationibus, Vol. I. Opp. Edit. Fabrott. p. 1224. & seq.
[4. ]See Plutarch, in the Life of Demetrius, p. 899. A.
[a ]B. 2. c. 23. §8.
[5. ]See Mariana, Hist. Hisp. Lib. XXIX. 15. Bembo, Lib. IV. [Fol. 62. where he treats of an Arbitration between the Florentines and Venetians, in which the latter had made choice of Hercules, Duke of Ferrara, for their Arbitrator.] There are many Examples of Treaties of Peace concluded by the Means of Arbitrators in Cromer’s Hist. Polon. Lib. X. XVI. XVIII. XXI. XXIV. XXVII. XXVIII. There are also some in Pontanus’s History of Denmark, Lib. II. See also those we have cited above, B. II. Chap. XXIII. § 8. Grotius.
[6. ]Adeo summum quisque caussae suae judicem facit, quemcumque elegit, &c. Hist. Nat. Praefat.
[1 ]Ideo melior videtur conditio causae bonae, si ad Judicem, quam si ad Arbitrum mittitur, &c. De Benefic. Lib. III. Cap. VII. But the Ambiguity of the Latin Word Arbiter misled our Author in this Place. Arbitrators, properly so called, are not meant here, but real Judges, who in Affairs bonae fidei, as the Roman Law expresses it, were to determine according to the Maxims of Equity, and not according to the Rigour of the Law, as I have observed elsewhere. See Mr. Noodt’s Treatise, De & Imp. Lib. I. Cap. XIII.
[2. ]Rhetoric. Lib. I. Cap. XIII. in fin.
[3. ]Semper in obscuris, quod minimum est, sequimur. Digest, Lib. L. Tit. XVII. De divers. Reg. Jur. Leg. IX.
[1 ]This the Duke of Savoy said, in the Dispute which he had concerning the Marquisate of Saluzzes. See De Serres, [or rather the Continuator of his Work] in the Reign of Henry IV. Grotius.
[2. ]But see what I have said in the Chapter of Pufendorf, cited § 6.
[3. ]Eodem anno inter Populum Carthaginiensem, &c. Lib. XL. Cap. XVII. Num. 1, 6.
[1 ]Which the Latins called Permittere de se arbitrium, as appears by the Demand which the Roman Senate made to the Aetolians, Interrogati ab uno Senatore, permitterentne arbitrium de se Populo Romano, &c.Livy, Lib. XXXVII. (Cap. XLIX. Num. 4.) Grotius.
[† ][[There is a second footnote number “1” here in the original, apparently a misprint.]]
[2. ]De Punic. Bell. (p. 34. Edit. H. Steph.)
[3. ]In Reality it is not merely as being become the Conqueror’s Subject, that the Conquered may be treated in this Manner. Our Author is far from believing, that the latter, who in extreme Necessity, for Instance, render themselves Subjects to any one, who was not their Enemy, and give him the most absolute Power over them (which in Latin is expressed by dedere se.) (See above, B. II. Chap. V. § 31.) that the latter, I say, consent, that he should dispose at his Pleasure of their Estates and personal Liberty, and still less of their Lives. I observe this, because some Writers have falsely imagined that our Author has confounded these different Manners of submitting to a Person with each other.
[4. ]Et permisso libero arbitrio, ne in corpora sua saeviretur, metuebant. Lib. XXXVII. (Cap. VII. Num. 1.)
[a ]Ch. 8. of this Book, § 4.
[5. ]Mos vetustus erat Romanis, &c. Idem, (Lib. XXVIII. Cap. XXXIV. Num. 7.) Grotius.
[b ]B. 3. c. 11. § 16.
[1 ]See a remarkable Example of this in Mariana’s History of Ferdinand, King of Leon, Lib. XI. Cap. XV. and compare this Place with what we have said in the eleventh Chapter of this last Book, § 14, 15. Grotius.
[a ]B. 3. c. 15. § 16.
[2. ]Lib. XIII. Cap. XXI. and XXIII. p. 342, 343. Edit. H. Steph.
[3. ]De Bell. Civil. Lib. V. p. 697. Edit. H. Steph.
[4. ]For Instance in Livy : Legationes finitimas ab Elaeunte, & Dardono, & Rheteo, Tradentes in Fidemcivitates suas benigne audivit. Lib. XXXVII. (Cap. IX. Num. 7.) Paullo, ut se suaque omnia inFidem et ClementiamPopuli RomaniPermitteret, contendente. Lib. XLV. Cap. IV. in fin. Grotius.
[5. ]It is the same Thing, according to Polybius, as to surrender to the Conqueror’s Discretion. Excerp. Legat. XIII. The Greeks express this thus, Ἐις δίκην σϕα̂ς αὐτοὺς παραδιδόναι, as in Thucydides, Lib. III. (Cap. LXVII.) Diodorus Siculus says, Καθ’ αὑτω̂ν ἐπιτρέπειν ἐξουσίαν. Lib. XIV. Grotius.
[6. ]Ubi supra, (p. 1116. Edit. Amstel.) Livy expresses it thus, Ita ad extremum finivit, ut diceret, Aetolos se suaque omnia fidei Populi Romani permittere. Lib. XXXVI. (Cap. XXVIII. Num. 1.) Grotius.
[7. ]Non in servitutem inquit, &c.Livy, ubi supra, Num. 4, 5, 6.
[8. ]Ubi supra.
[9. ]Adversus quam [civitatem] saevire cupiens, &c.Valerius Maximus, Lib. VI. Cap. V. Num. 1.
[10. ]Campanorumaliam conditionem esse, qui non foedere, sed per deditionem, in fidem venissent.Livy, Lib. VIII. (Cap. II. Num. 13.)
[11. ]Clementia liberum arbitrium habet; non sub formula, sed ex aequo & bono, judicat. & absolvere illi licet, & quanti vult, taxare litem. De Clement. Lib. II. Cap. VII. This alludes again to the Difference there was, according to the Roman Law, between Judex and Arbiter, of which I have spoke in Note 1. upon § 47.
[1 ]Thus the Inhabitants of the City of Phocaea, when they surrendered their City to L. Aemilius Regillus, stipulated, that no Hurt should be done to them. Tum portas aperuerunt, pacti, ne quid hostile poterentur.Livy, Lib. XXXVII. Cap. XXXII. Num. 10.
[2. ]The Roman Praetor, spoken of in the foregoing Note, restored to the Phocaeans their City, Lands, and Liberty to live according to their own Laws. Urbem, agrosque, & suas leges iis restituit.Livy, ibid. Num. 14. It is true, the Historian does not say this was by Way of Composition; but nothing hinders its being stipulated upon surrendering. Mr. Thomasius, in his Dissertation De Sponsione Romanorum Numantina, § 12. maintains, that there is no Example of a Composition, by which the Conqueror left those who surrendered any Part of their Civil Liberty. He adds some other Remarks against our Author, which I shall not examine; tho’ he does not seem to have sufficiently comprehended his Principles. See above § 49. Note 3.
[a ]B. 1. c. 3. § 17.
[a ]B. 3. c. 4. § 14. and c. 11. § 18.
[1 ]There are also Hostages, neither given by the Sovereign nor themselves, but taken by the Enemy. In this Manner Joash made the Children of Amasiah Hostages, 2 Kings xiv. 14. Alexander the Great took thirty thousand, as Quintus Curtius relates, Lib. VIII. Cap. V. Num. 1. and Hannibal, four thousand, as we find in Livy, Lib. XXI. Cap. XXI. at the End. There are many other Instances of it in antient History: And nothing is more common in these Days than to take Hostages by Force, for the Security of Contributions. There is a great Difference, with Regard to the Effects of Right, between Hostages of this Kind, and those which are given by the State. For the former, unless they have engaged by Promise to remain in the Hands of the Enemy, may not only escape, (as our Author admits the other to do also, tho’ without sufficient Reason, as we shall see below) but the State may receive them, as well as any other Prisoners that make their Escape. This is what the late Mr. Battier, Professor of Law, and Syndick at Basil, has very well observed, in a small Dissertation De Obsidibus, & eorum jure, § 12. See below, § 53. Note 1.
[2. ]And, in Consequence, the State may engage the corporal Liberty of Subjects, which is all that the Engagement of Hostages includes of itself. See Pufendorf, Law of Nature and Nations, B. VIII. Chap. II. § 6.
[3. ]Or unless it has been expressly stipulated in the Act of Investiture. See Cujas, in Feud. Lib. II. Cap. VII. and Albericus Gentilis, De Jure Belli, Lib. II. Cap. XIX. p. 397.
[1 ]Hostages are demanded and given for the Security of the Execution of some Engagement: Now in this Case it suffices, that the Hostages are retained, in such Manner as shall be judged proper, till the Performance of the Things agreed on; it is not at all necessary, that the Hostages become Slaves. But it is not the same in Regard to those which are taken after a City has been reduced to surrender; for they ought to be considered as Prisoners, who, according to the received Custom of old, became Slaves. The Hostages also, who have been given voluntarily, if those who gave them break the Conventions, and renew the War, fall into the same Condition; because, from thenceforth they become Enemies again. This Mr. Battier observes also, in the Dissertation cited before, (§ 19.)
[2. ]Divus Commodus rescripsit, Obsidum bona, sunt Captivorum, omnimodo in fiscum esse cogenda. Digest, Lib. XLIX. Tit. XIV. De Jure Fisci, Leg. XXXI. But the Hostages might make Wills, if the Roman People or Emperor permitted them; or if they had acquired the jus togae, that is to say, the Freedom of the City of Rome. See the following Law of the Title here cited, and Cujas upon Law XI. of the Title Qui testamenta facere possunt, p. 1068. col. 2. Vol. I. Opp. Edit. Fabrott. as also the Treatise of the late Baron Spanheim intitled Orbis Romanus II. 7. p. 239, 240.
[1 ]But says Mr. Buddaeus, (in his Dissertation intitled, Jurisprud. Hist. Specimen, § 56.) either the State did intend that the Hostage should continue in the Hands of him to whom he was given, or that the State had not Power to oblige the Hostage to remain. The first is manifestly false; for otherwise the Hostage could be no Security, and the Convention would be illusive. Nor is the other more true; for if the State, by Vertue of its eminent Domain, can expose even the Lives of the Citizens, why may it not engage their Liberty? Mr. Battier, in the Dissertation which I have cited more than once, (§ 18.) declares also, and with Reason, against our Author’s Opinion; who does not agree himself with what he advances, that the State ought to give up fugitive Hostages, as Mr. Vander Meulen observes on this Place.
[2. ]See what Plutarch says upon it, in the Life of Publicola.Virgil speaking of the Action of Clelia, says, that, having broken her Chains, she saved herself by Swimming,
(Aeneid, VIII. 651.) which the Commentator Servius explains of the Engagement of the Treaty. Sed vincla pro custodiis accipimus, aut certe pro foederibus, &c.Grotius.
[3. ]Quemadmodum, si non dedatur obses, pro rupto se foedus habiturum, &c.Livy, Lib. II. Cap. XIII. Num. 8.
[4. ]Et Romani pignus pacis ex foedere restituerunt, &c. Ibid. Num. 9.
[a ]See B. 3. c. 2.
[1 ]That is to say, even tho’ there be some other Reason for which they might be retained without that Clause. This is evidently our Author’s Thought. So that Ziegler, and others after him, are in the Wrong to suppose the contrary; since they object to him, that an express Convention would not have more Force than a tacit one, by which the Party that receives Hostages, always engages to restore them, as soon as that is performed, for the Security of which they were given.
[1 ]See the Law cited above, Chap. IX of this Book, § 10. Note 7.
[2. ]De Bell. Syr. p. 117. Edit. H. Steph.
[3. ]Patruus ejus Demetrius, qui obses Rome erat, cognita morte Antiochi fratris, Senatum adiit, Obsidemque se, vivo fratre, venisse; quo mortuo, cujus obses sit, seignorare. Lib. XXXIV. Cap. III. Num. 6. Our Author observed here, that it was better to read, for the Connection of the Discourse, Obsidem inquiens se, &c. But Bernegger rejects this Correction, in his Note on this Place, without saying who is the Inventor of it. Scheffer however approves it. It is better, in my Opinion, to read Obsidem se, leaving out the que, which is not in some Manuscripts, as the latter of those Commentators acknowledges, that the Passage may be read without Inconvenience, by an Ellipsis, frequent in the antient Abridger we speak of.
[a ]B. 2. c. 16. § 16.
[1 ]That is to say, they ought themselves to execute, in default of him for whom they are given as Hostages, what he had engaged to do, so that the Obligation of the former does not cease by the Death of the latter: And, at Bottom it is the same Thing as if they had entered into the Engagement themselves, and in their own Name. For, as to the Rest, our Author does by no Means pretend, that their Obligation may not be in itself subsidiary; as Ziegler supposes, and others after him, who, without Reason, often criticise this great Man, for Want of understanding his Thoughts.
[a ]B. 2. c. 15. § 16.
[2. ]Albericus Gentilis, whom our Author cites in the Margin, does not say this. He supposes, on the contrary, (p. 396. Edit. Hanov. 1612.) that there has been a Consent of the Hostages themselves. Ziegler has before observed this Mistake.
[1 ]With this Difference however, that in such Case the Pledge is retained as a Pledge; but the Hostage not as an Hostage, but as a Subject responsible in that Quality for the Act of his Sovereign; as our Author has explained it above, § 55. Num. 2.
[2. ]One is more easily induced to leave Things than Persons in the Hands of another. This suffices as a Foundation for the Restriction.
[a ]B. 2. c. 4. § 15.
[1 ]See what I have said, B. II. Chap. IV. upon § 15. or last.