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CHAPTER IX: Concerning the transeunt rights of Sovereignty. - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations 
A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).
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Concerning the transeunt rights of Sovereignty.
It is lawful to make war.Because all empire is supreme and absolute, (§127), it follows, that different empires or civil states are independent, and subject to no common authority on earth (§ eodem). But such states are in a state of nature, and therefore in a state of natural equality and liberty (§5 & seq). And because in such a state the injured have no defence or protection but in themselves, and therefore in it every one has a right to repel violence and injury, and to extort by force what is due to him by perfect right (§9), it is abundantly evident, that every civil state or republic has the right of making war.*
What is war.By war we understand a state in which free and independent men or nations, living in a state of nature, contend in prosecution of their rights by force or stratagem, while they retain that intention.* From which definition, it is plain that war does not consist in the act itself of contending, but in a hostile state, and in the fixed purpose of contending; and therefore truce does not belong to a state of peace, but to a state of war; and, on the other hand, the quarrels and tumults, the private or public violences of men who are not their own masters, but subjected to civil government, do not come under the definition of war.
To whom the right of war belongs, and in what it consists.Since war is made by free nations, and men who live in a state of nature (§189), the consequence is, that in the latter case the right of war belongs to all promiscuously, as being all equal (§5 & 9); but in the former to the supreme power only (§135); and therefore it is the right of the Sovereign to levy or hire troops,* to build fortresses and fortify towns; to raise money for the maintenance of an army, to make provision of arms, warlike stores, ammunition, and other necessaries for war; to build, man, and store ships, to declare war, wage war against an enemy, and thus expose soldiers to the greatest danger, and make laws relative to military discipline and exercise, and such like things. For the end of this right being the external security of the state (§135): because the chief magistrate of a state must have all the rights, without which that end cannot be obtained (§133); every one may easily see that the right of war must make one of them.
Whether an inferior magistrate may make war?From the same definition of war, it is evident that an inferior magistrate, or the governor of a certain province or fortress, cannot make war; tho’ that such may defend the towns or provinces under their command and government against any aggressor whatsoever, on a sudden attack, even without a special order, none can doubt; nay, because a province may be so remote, that its governor cannot inform the Sovereign of its imminent danger speedily enough to receive proper instructions, in this case certainly, if the right of making war be given to the governor by a general mandate, there can be no doubt of his right to make war without particular order from his superiors.*
Whether private persons have the right of war?Moreover, from this definition we learn that single combats are unlawful, unless undertaken by the command of the supreme powers;† and therefore Grotius’s distinction between private and public war hath no foundation, nor does it quadrate with the definition of war. Much less can that be called war which is carried on by citizens against one another, and is commonly called a civil war. Again, the state of violence and enmity, which pirates and robbers are in with all mankind, as it were, is not a state of war, but of robbery and plunder; and therefore such persons have not the rights of war, but ought to be punished as disturbers of the public security.
The justifying causes of war.Since war is carried on by free nations (§189) in prosecution of their rights, the consequence is, that there are only two just causes of war: One is, when a foreign people injures another people, or attempts to rob them of their liberty, wealth, or life: the other is, when one people denies another their perfect right.* The first is a just cause of defensive war, the last of offensive; and therefore the third, first mentioned by Grotius (of the rights of war and peace, 2. 1. 2. 1.) viz. the punishment of crimes, is not to be admitted as a just cause of war; the rather, that it is certain an equal cannot be punished by an equal; and therefore one nation cannot be punished by another (§157).
Whether war be just on the account of refusing to render imperfect right?As the denial of perfect right only is a just cause of war (§193), hence it follows, that it is not allowable to have recourse to arms for the refusal of an imperfect right (§9); and therefore these are not just causes of war; as, for instance, if one refuses passage to an army, or denies access to a people in quest of a new habitation, will not grant the liberty of commerce to a people at their desire, or furnish money, provision or shelter, to those who are carrying on war, unless these things be due by an antecedent treaty, or be demanded in extreme necessity, or be of such a kind, that they may be granted without any detriment* (§9 & seq.). For then a refusal of such things becomes an injury, and is therefore a most just cause of defensive war (§193).
If war may be waged for others?But it being sometimes the same whether we ourselves are immediately injured, or we are so thro’ the side of another; and, in like manner the same, whether perfect right be denied to us or to others, whom we are obliged, either by treaties, or on our own account, to assist; hence we may justly conclude, that war may be engaged in for allies and confederates; yea, and for neigh-bours, if it be very certain that we must suffer by their ruin. For who will blame one for hastening to extinguish fire near to his own house? Who does not consent to the truth of the antient saying, “Your interest is at stake, if your neighbour’s house be on fire”? However, since we cannot make war even for ourselves without a just cause (§193), much less will a war be just and vindicable, if we engage in the behalf of others for injustifiable reasons.
Mere colours do not justify war.But tho’ these just causes be easily distinguishable from the mere pretexts often used by those who make war most unjustly; yet men, who regard nothing but their own interest, often lay more stress on the latter than the former. However, it is plain, that if these causes we have mentioned be the only justifiable causes of war (§193), war must be very unjust, if made merely because opportunity, and the weak, defenceless state of another nation invites to it, or purely to gain some great advantage, and to extend one’s empire, for the glory of martial achievements, or from religious enmity, without any other just cause.*
The distinction between solemn and less solemn war is of little use.Many nations have thought that war, so soon as resolved upon, ought to be solemnly declared; and hence the known distinction between solemn or just, less solemn, or unjust war. The former, in the opinion of most writers, is that which is undertaken by one who hath the right to make war with a previous solemn denunciation. The latter, that which is undertaken by one who hath not the right of war, and is not previously declared. But tho’ we grant that this is become almost an universally received rule, and victory is generally thought more glorious, when it is obtained by a war that was previously declared by a manifesto, or by heralds, or with other solemn rites; yet, because rites and solemnities are arbitrary, and such customs do not constitute a part of the law of nations (l. 1. §22);* we think there is no difference as to legal effect between war declared and not declared; and therefore, that this division is of very little moment.
The causes of war ought to be manifest.But right reason clearly teaches us, that recourse ought not to be had immediately to arms; but then only, when a people hath shewn a hostile disposition against us (l. 1. §183). But seeing he shews a hostile disposition against us, who obstinately rejects all equal terms and conditions of peace (§ eodem); hence we justly infer, that before we take violent methods, what is due, or we think is due to us, ought to be demanded, and the dispute ought to be clearly stated with the arguments on both sides, and all means ought to be tried to prevent war;* which being done, he certainly takes up arms justly, who, having proposed good and adequate reasons, cannot obtain from his enemy any reasonable satisfaction.
What is lawful against an enemy.Seeing princes and free nations make war in order to vindicate their rights (§193), the consequence is, that every thing is lawful against an enemy, without which these rights cannot be obtained. But they cannot be obtained but by reducing the enemy to such a state, as that he either cannot, or will not any longer shew a hostile disposition: and therefore every one has a right to use force or stratagem against an enemy, and to employ all means against his person or effects, by which he can be weakened, without regard even to the offices of humanity, which then cease (l. 1. §208); nay, we cannot call it absolutely unjust to make use of poison or assassines, tho’ such practices are with reason said to be repugnant to the manners of more civilized nations, and to what is called (ratio belli) the humanity of war.*
Whether it be lawful to deceive an enemy by pacts and treaties?But since it is against an enemy only that it is lawful to use force or stratagem (§199), the consequence is, that it is not lawful to use either against those with whom we are in treaty; because then we pledge our faith to them not as an enemy, but as a people treating with us.* Whence it is evi-dent, that they are guilty of abominable perfidiousness, who break a short or long truce before it is expired; tho’ it be very true that both parties may exert defensive acts during that time, Pufendorff of the law of nature and nations, 8. 7. 10. Nor is their treachery less abominable, who basely violate the articles of surrendery, pacts concerning the conveyance of provisions, or the redemption of prisoners, foolishly pretending to justify themselves by this pretext, that all is lawful against an enemy.
What is lawful against others not enemies.From the same principle we conclude, that none may use the rights of war against such as are in peace and friendship with them, under the pretext that an enemy may seize their castles and fortresses, or harbours, and make advantage of them against us; nor is it lawful to seize or hurt enemies or their ships in the territory, or within the ports of a people in peace with us, unless that people designedly gives reception to our enemy, because such violence is injurious to the people with whom we are in peace, whose territory or ports are entred by force. See V. A. Corn. van Bynkershoek. quest. jur. publ. 1. 8. On the other hand, there is no reason why we may not hinder such a people from conveying arms, men, provisions, or any such things to our enemy, and hold such things for contreband;* (Bynkers. ibidem, cap. 9. & seq.) tho’ equity requires that we should not promiscuously condemn the goods belonging to our friends with those belonging to our enemies. (Bynkers. 1. 12. & seq.). See likewise our dissertation de navibus ob mercium illicitarum vecturam condemnatis.1
How acquisitions may be made by war.We have observed, that the persons and estates of enemies may be spoiled or taken (§199); whence it is plain, that it depends on the will and pleasure of an enemy to lead persons taken in war captive into servitude, or which is now the prevailing custom in European nations, to detain them till they are exchanged or ransomed. The effects of enemies, moveable or immoveable, corporeal or incorporeal, fall to the conqueror; moveable, so soon as they are brought within the conqueror’s station; immoveable, and other things, from the moment they are occupied, tho’ the possession of them be not secure, till peace being concluded, treaties about them are transacted. But that moveable things, as well as persons and territories, being retaken, or recovering their antient liberty, have the right of postliminy, none can call into doubt.†
What reprisals are.From the definition of war it is plain, that if there is no controversy between nations and states themselves, when we lay hands upon persons or effects belonging to another republic in peace with us, on the account of justice refused to any of our society, this cannot be called war, but is making reprisals.* But since this may very probably give rise to a war, it ought not to be done by any private person, but with the approbation of the Sovereign; and it ought to be carried no farther, than to make satisfaction to our member to whom justice was refused.
How empire is acquired over the conquered.But since in a state of nature the right of defence lasts while an enemy shews a hostile disposition (l. 1. §183), which he cannot be said to have laid aside, who is not willing to return into friendship, but repels all reasonable conditions of peace, (ibidem) no injustice certainly is done to the conquered, if we prosecute our right till they are fully subdued, and we have obtained compleat empire over them; and we may constitute this empire as we judge proper, and exercise it, till peace being concluded, some articles are agreed upon with relation to it; or the nation not being totally overthrown, and no treaty being yet made, recovers its antient liberty, or is bravely rescued by their former Sovereign.*
What a treaty is, equal or unequal.Another right of majesty, which may be reckoned among the external or transeunt ones, is that of making treaties among free nations about things belonging to the utility of both, or any of them. From which definition it is plain, that some of them are equal, in which the condition of both parties are equal; others are unequal, in which both parties have not the same rights granted to them, but one has better, and the other worse conditions; which, as examples shew us, may be either with regard to the conditions to be fulfilled, or to the manner of performing them.†
Treaties are either matters of simple general friendship, or which oblige to something in particular.Because free nations can contract about things relating either to the utility of either or of both, (§205), it follows, that those good offices which are owing by natural obligation, may be stipulated to themselves by free nations or states; and these are called leagues of friendship.* And other things may be stipulated, to which there was no prior obligation; which treaties we call treaties of particular obligation. The first are not unnecessary, because there is no other way of securing another’s performance to us of the duties of humanity, but by pacts (l. 1. §386). And it often happens, that war puts an end to all the duties of humanity (§199), and therefore it is absolutely necessary that friendship should be renewed by pacts and covenants.
Some treaties are made in time of peace.A thing may be useful to a state either in peace or war, and therefore some treaties relate to peace, and others to war; but it being the interest of a state, that peace be rendered as durable and stable as possible, and as profitable to its subjects as may be, we may refer to the first end, treaties by which certain guarantees engage their faith, that the ar-ticles of peace shall be faithfully observed, and promise assistance to the injured party;* as likewise treaties about building new fortifications, or for admitting and keeping garisons in certain fortified places, for defending frontiers, commonly called barrier-treaties; for not sheltering fugitive soldiers or subjects; or not giving reception to enemies, &c. to the latter of the above mentioned ends we may refer treaties of commerce.
Some treaties are made in times of war.But in time of war various treaties are made by free nations with friends and enemies. With the former, treaties are made sometimes about joining their forces against a common enemy, which are called offensive and defensive treaties; sometimes about free passage through a territory, and furnishing provisions; and sometimes about not interposing in the war, which last are called treaties of neutrality. With the latter, treaties are made, sometimes about paying tributes, sometimes about giving up certain towns, sometimes about the redemption or exchange of prisoners, which are called Cartels. (Of these Hertius has expresly handled in his diss. de lytro) and sometimes about a truce of hours, days, or months,* and other like matters.
Some are personal, and others are real.Besides, that interest, for which treaties are made, either respects the person of the Sovereign only, or the state itself. For which reason, some treaties are personal, and others real; and the former expire with the persons; the latter continue after both the contracting Sovereigns are extinct. Now, from these definitions it is plain, that all treaties for the conservation of a prince or his family are personal, and those relating to the utility of a state itself are real.† And to this division may all those of Pufendorff (of the law of nature and nations, 8. 9. 6.) be most conveniently referred.
Whether treaties may include, or be beneficial to allies?What is advantageous to a state is likewise advantageous to its allies and confederates; and therefore we may consult not only our own interest, but that of our allies likewise, in treaties; and that either by mentioning them in general, or specially and particularly. And here it is plain from the nature of the thing, that in the last case, the treaty cannot be extended to any others but those mentioned in the articles. But in the first case, it extends to all our allies at the time the treaty was made; but not to such allies as joined themselves to us afterwards;* because pacts cannot be extended to comprehend things not thought of when they were entered into (lib. 1. §393).
What may be done by sponsion?Moreover, because a league is a convention between free nations or states, it is plain (§205), that none can make leagues but those who have a commission to do it, either expresly, tacitely or presumptively. And therefore, what ministers of a Sovereign have promised without a commission from him, if it be not afterwards ratified, comes under the denomination of sponsion, and not of league. Now, hence it is evident that a republic is not bound to ratify a pact made without their order; but it is certain, on the other hand, that a minister who contracts with a state is obliged to make satisfaction to that state, which by the fecial law of the Romans, consisted in giving him up naked with his hands tied behind his back.* And it is no less certain, that the exception against a treaty for want of a commission to the minister, is for the most part a cavil, seeing a republic who gives the command of an army or province to a minister with full powers, is justly deemed to have given him all the power, without which an army or province, nay, the republic itself, cannot be secure.
If it be lawful to make treaties with infidels.Because treaties are made by free nations (§205), it is plain that it makes no difference, whether a people profess the same religion we do, or one which we look upon as impious and abominable: for as a private person may lawfully contract or bargain with one of a different religion; so neither a republic nor its rulers ought to be blamed if they make useful treaties for their people with infidels; and that revelation hath made no alteration with respect to this natural truth, Grotius has fully demonstrated (of the rights of war and peace, 2. 15. 9. & seq.).†
Duties with respect to treaties.Moreover, since treaties are conventions (§205); the consequence is, that all we have said above of pacts, takes place likewise in treaties. So that nothing ought to be held more sacred than treaties, nor nothing more detestable than the perfidiousness of treaty-breakers. Yet because no society is obliged to prefer another’s interest to its own (§22), a republic cannot be obliged by an alliance or treaty to assist another, if its own condition doth not permit; as, e.g. if it be overwhelmed in war, or be in any imminent danger;* nor is a republic ever obliged to engage in an unjust war for its allies.
The right of Sovereigns with regard to peace.So far have we treated of leagues in general, the noblest of which undoubtedly is that pact by which an end is put to war among free nations, commonly called a treaty of peace. But peace being the ordinary state of a republic, and, as it were, its natural state; and war being its extraordinary and preternatural state, it is evident, that Sovereigns are obliged to maintain peace, and to restore it, if it be interrupted; and consequently that these are savage wars, which are carried on, not with a view to peace, which is better than a thousand million of triumphs.
What a treaty of peace is.By a treaty of peace we understand a convention between free nations involved in war, by which their quarrels are accommodated by way of transaction. From which definition it is plain, that peace, in its own nature, ought to be perpetual; and therefore, if it be made for a certain time only, however long, it is not properly peace, but a truce;* because the quarrel which engaged the nations in war is thus not ended, but the design of disputing it by arms still subsists; which state, as we observed, is a state of war, and not of peace, (§189).
If the exception of inequality be valid.Peace being made by way of transaction (§215), the consequence is, that it may be made giving, retaining, or promising something; and therefore, that equality in its articles is not requisite; nor can either of the parties justly complain of being wronged, however enormous the wrong may be; since the conqueror may impose any terms, and the conquered may prefer any terms never so hard to perishing.†
Nor the exception of force or fear.Much less can an exception of fear or force be opposed to a treaty of peace; for this exception never takes place when one has a right to force another (l. 1. §108). But war is as just a way of forcing among independent free nations, as the authority of a judge in a civil state (§9); nor is it to any purpose to say that the war was unjust, and therefore that the victor used unjust violence in extorting hard conditions from the conquered. For besides, that neither of the parties engaged in war hath a right to make himself judge in his own cause, and determine concerning the justice of the war, the conquered, by transacting with the conqueror, remits that injury, and consents to the amnesty included in all such treaties.*
If peace ought to be kept with rebellious subjects?Grotius 3. 19. 6. and Pufendorff of the law of nature and nations, 8. 8. 2. ask whether a commonwealth or government is obliged to observe a treaty of peace made with rebellious subjects? And they justly affirm it ought, against Boxhornius, instit. polit. 1. 14. 19.2 and Lipsius. For peace is made by way of transaction (§215); but he who transacts with one who had injured him, is deemed to have remitted the injury done to him. And therefore Sovereigns, by making a treaty of peace with rebellious subjects, give an indemnity to them for their rebellion; and thus this peace cannot be broken without injustice, unless for a new cause; except it was not valid from the beginning, either on account of some fraud on the part of the rebels, or of the state of the prince who made the treaty.*
The obligations of the contractors, mediators, and sponsors.Besides, as other treaties, so those of peace ought to be (§213) most religiously observed; and therefore the time within which articles ought to be fulfilled, must be strictly observed, and delays cannot be easily excused. See Grotius 3. 20. 25. It is likewise evident to every one, that mediators, who undertake the office of making peace, and guarantees, who answer, as it were, for the contractors, are obliged, by pact, to the contracting parties;* because, having undertaken the business, they oblige themselves to whatever it requires. Whence we conclude, that it is the duty of mediators not to favour one party more than another, but to judge impartially of the cause on both sides, and to persuade each to what is most equal and advantageous; and the duty of guarantees to use their utmost endeavours that the articles of the treaty be fulfilled on both sides, and to assist the injured party by their advice and aids, and with forces, if promised.
The right of sending ambassadors, and their sacredness.Sovereigns having the right of making leagues and peace with enemies (§135), which cannot be done without employing agents or messengers; the consequence is, that they are allowed to have the right of sending ambassadors. Now, since he who receives another’s ambassadors, by that very deed is deemed to promise them a safe admission and exit (l. 1. §391); the consequence is, that ambassadors ought to be held sacred amongst enemies, and not only as exeemed from the jurisdiction of him to whom they are sent (of which V. A. Corn. van Bynkersh. hath admirably discoursed in his treatise de foro legatorum);3 but as having the right of saying, writing, and acting whatever they are ordered by their constituent republics or Sovereigns, to speak, write, or do, provided they shew no hostile disposition against the state to which they are sent.*
Different customs of nations with regard to ambassadors.Other matters relating to ambassadors, which are treated of at great length by Marselarius, Wicquefort,4 and others, may either be easily deduced from the preceding principles, or belong to the customs of nations, and not to the laws of nature and nations; such as the jurisdiction of an ambassador over his own family, his rights with regard to the exercise of his religion in his family, his immunities, his right of giving protection, and the solemnities of his reception, entry, and taking leave; his titles and honours, and the forms of audience; and the different orders and degrees of ambassadors, their titles of honour, precedency, and many other such like questions; as likewise concerning what is become now universal usage, the inviolability of trumpeters, drummers, and heralds (as among the Greeks of old) of whom Homer often makes mention (Odyss. 10. v. 59. & 102. & 19. v. 294. and Iliad 10. v. 14. & 178). But upon these matters it does not concern us to dwell.
[* ] This might be proved by other arguments. For nature hath not only endued men, but even brute animals with a principle of self-defence; and hath furnished the latter with certain arms to protect themselves.Ut, quo quisque valet suspectos terreat; utqueImperet hoc natura potens, sic collige mecum.Dente lupus; cornu taurus petit. Unde, nisi intusMonstratum?Horat. Serm. 2. 1. v. 50.
[[Horace, Satires II, 1.50–53: “How everyone, using the weapon in which he is strong, terrifies those he fears, and how powerful nature commands that this should be so, you must infer, along with me, in this way: the wolf attacks with its fangs, the bull with its horn; from where did this come, except from an internal instinct?”
Many testimonies of the ancients to this purpose are collected by Grotius, of the rights of war and peace, 1. 2. 1. 4. Again, since private persons living in society have the right of self-defence, when they cannot have recourse to public protection (lib. 1. §181), much more must it be allowable to a free people to defend themselves, since in a state of nature there is no common magistrate to judge between the injurer and the injured, and to defend against violence (ibid. §183). The ancient fathers of the church have brought several arguments from the sacred writings against the right of war, as Tertullian de idolol. cap. 18. & de corona milit. cap. 11. Tertullian, De idololatria, ed. Waszink and van Winden; Tertullian, De corona militis, in Tertullian, Tertulliani libri tres. Origen adv. Cels. l. 8. p. 425. Origen, Adversus Celsum, in part 2 of his Opera quae quidem extant omnia. Erasmus in milite Christiano, & Adagiorum Chil. 4. Cent. 1. adag. 1. and likewise the Anabaptists, of whom Arnold. in Hist. eccles. & haeret. part. 2. l. 16. cap. 21. n. 24. Erasmus, Enchiridion militis Christiani; Erasmus, Adages iv.i. 1, vol. 35, of Collected Works of Erasmus; Arnold, Unpartheyische Kirchen- und Ketzer-Historie. But these objections have been sufficiently answered by Grotius in his masterly way (ibid. §5. & seq.) and by Huber de jur. civ. 3. 4. 4. 6. & seq.]]
[* ] Thus we think it proper to define war, tho’ it be otherwise defined by others. According to Cicero (off. 1. 11.) all contention by force is war. But Grotius (of the rights of war and peace, 1. 1. 2. 1.) observing, that not the act but the state is properly denominated war, amends this definition, by calling war a state of contention by force, as such. Yet because this definition agrees as well to tumults, or private and public violence, as to war, the definition of Albericus Gentilis (of the rights of war, 1. 2.) is rather preferable. [[Albericus Gentilis (1552–1608), Italian jurist considered to be the founder of the theory of international law. Grotius drew extensively on his main work, De jure belli. He defines it to be a just contention by public arms. But the best of all, is the definition given by V. A. Corn. van Bynkersh. Quaest. juris publ. 1. 1. which we follow.]]
[* ] It is well known, that there are three kinds of armies: one when every subject bears arms for his country, as in the Grecian republics of old, and among the Romans during their freedom, and as at present in Switzerland: another is mercenary, when soldiers, even foreigners, are listed for money; which kind of army Augustus, by the advice of Maecenas, preferred for certain reasons to the other, Dion. Cass. hist. lib. 52. p. 482. and which is at present preferred by all monarchs, who are not secure of the hearts of their people: another is confederate, when republics by alliance, or in consequence of due homage, are bound to furnish a certain quota of forces; such were the auxiliaries furnished by the Latins to the Romans: of which kind of armies see a curious dissertation by Herm. Conringius. [[Hermann Conring (1606–81), German philosopher at the University of Helmstedt and councillor and doctor to the Swedish queen Christina. Conring held views similar to those of Machiavelli on the uselessness of mercenary armies. Heineccius here is probably referring to Conring (praeses) and Koch (respondens), Discursus politicus de militia lecta, mercenaria et sociali. Concerning hired or mercenary troops, it hath been often questioned, whether it be lawful for a prince to keep up such amidst his well-affected subjects. Upon which question, see V. A. Corn. van Bynkershoek, Quaest. jur. publ. 1. 22.]]
[* ] Hence the war of Cn. Manlius [[Gnaeus Manlius, Roman proconsul in 187 bc against the Gallo-Graeci was unjust. And for this reason, he was refused a triumph, Liv. 38. 45. “because, says he, he did it without any reason, and without the authority of the senate, or the command of the people, which none ever had dared to do.” And it is known that the senate were not far from giving up Julius Caesar to the Germans, for having made war against them without the command of the people, Sueton. Jul. Caes. cap. 24. But the governors sent by the Spanish, Portuguese, Dutch, &c. into American provinces, have commonly such full power of making war and peace, that the news of the victory are often the first news of the war.]]
[† ] For such kind of single combats were a sort of representative war, used among the ancients, when they chose persons out of each army to decide the fate of the war by a single combat, agreeing that the party which had success in it, should have the right of victory or conquest. Ancient annals are full of such examples. Many of them are gathered together by Grotius, (of the rights, &c. 3. 20. 43. & seq.) who, however, pronounces such combats unlawful, because no person is master of his life and members. But sure, if a Sovereign may expose whole armies to an enemy, he may expose one or a few persons. Whether this practice be agreeable to civil prudence, is another question. Of that there is reason to doubt, because thus the whole republic is submitted to one chance, nor can they afterwards try their fortune with the remains of their strength, as the Albans felt to their sad experience, Dionys. Halicar. antiq. lib. 3.
[* ] Nor does the reason assigned by Grotius prove any thing else, ibid. n. 1. “As many sources as there are of judicial actions, so many causes may there be of war. For where the methods of justice cease, war begins. Now in the law there are actions for injuries not yet done, or for those already committed. For the first, when securities are demanded against a person that has threatened an injury, or for the indemnifying of a loss that is apprehended, and other things included in the decrees of the superior judge, which prohibited any violence. For the second, that reparation may be made, or punishment inflicted; two sources of obligation, which Plato has judiciously distinguished. As for reparation, it belongs to what is or was properly our own, from whence real and some personal actions do arise; or to what is properly our due, either by contract, by default, or by law; to which also we may refer those things which are said to be due by a sort of contract, or a sort of default, from which kind all other personal actions are derived. The punishment of the injury produces indictments and public judgments.” [[Grotius, Rights of War and Peace, bk. II, chap. 1, 2.1. So far Grotius. But as we cannot reason from a state of nature to a civil state; so no more can we reason from a civil state to a state of nature. One nation hurts another, either by its default, or does not hurt any other, e.g. if it worships idols, or eats human flesh. In the first case, the injured people attacks the delinquent people with a just and lawful war, not a punitive but a defensive war. In the last case, there is absolutely no right to make war, because none but a superior can punish a delinquent.]]
[* ] That rarely happens. For either there is danger from the army that demands liberty to pass, or from the enemy, who may take it amiss that passage was granted. But if the passage be absolutely without danger, and so necessary that there is no other way for them who ask it to take, he does an injury who refuses such passage. And to this cause we may refer the war waged by the Israelites at God’s command, Num. xxi. 21, 22. But the Idumeans were not touched for the same reason, Num. xx. 21. either because that passage was not so safe, or not so necessary, there being another way to Kadesh.
[* ] And I know not but the cruel wars carried on in the middle ages against the Mahometans by Christians, must be referred to this class: as likewise those which the Spaniards dared to undertake against the Americans, a nation not inured to war, and that had never done any injury to the Europeans. The former were not coloured over with any other pretext, but that the Holy-land, Jerusalem chiefly, were possessed by aliens from the Christian church, and that it was the interest of Christians thus to promote and propagate their religion. The latter with this only pretext, that the Americans were impious idolaters, or rather worshippers of demons. But since Christianity does not permit of propagation by force; and neither reason nor revelation allows places which appear sacred to certain men, to be therefore claimed by arms and violence; and since besides all this, all wars in order to punish are unlawful (§193), these wars must needs be pronounced most unjust. Wherefore, Herm. Conringius ad Lampad. p. 242. says very justly, “Tho’ many things were done in them which deserve the praise of zeal and courage; yet, if we may speak the truth, all these expeditions were owing to the weakness, imprudence, and superstition of the Kings and Princes of that age.” [[Conring, “Discursus ad Lampadium posterior ex manuscripto editus,” in Conring, Opera, vol. 2, pp. 238–461. See likewise Jo. Franc. Buddeus, exercitat. de expeditionibus cruciatis, §5. & seq. Budde (praeses) and Greulinck (respondens), De expeditionibus cruciatis dissertatio politica. As to the opinion of the Spaniards, about a right to punish the Mexicans for their crimes against nature, which Grotius defends (of the rights of war and peace, 2. 20. 40. & seq.) it is given up even by the Spanish doctors themselves, Victoria, relat. 1. de Indes. n. 40. Vasquius controver. illust. 1. 25. Azorius, Molina, and others. Vitoria, Relectio de Indis; Vazquez, Illustrium controversiarum, aliarumque usu frequentium libri sex. Luis de Molina (1535–1600) was a Spanish Jesuit theologian, as was Juan Azor (1535–1603).]]
[* ] Grotius of the rights of war and peace, and Alberic. Gentilis of the rights of war, lay great stress on this distinction, who are followed in this matter by Pufendorff, Huber and others, for a double reason. First, because by such an appeal or declaration, it is made evident, that we cannot otherwise obtain what is due to us. And secondly, because thus it appears that the war is made by the consent of the whole body in both nations. But these reasons only prove, that a previous declaration of war is of use and laudable, not that it is necessary to make a war just, because both these facts may be evidenced by other means, besides a solemn declaration. Wherefore, Dio. Chrysostom. Orat. ad Nicomed. asserts with reason, and agreeably to the principles of the laws of nations, “Several wars are undertaken without denunciation.” [[Dio Chrysostom, “The Thirty-eighth Discourse: To the Nicomedians, on Concord with the Nicaeans,” p. 67, in Dio Chrysostom, Dio Chrysostom, vol. 4, pp. 48–93. But this subject hath been exhausted by Thomasius ad Huber. de jur. civ. 3. 4. 4. 27. and by V. A. Corn. van Bynker. Quaest. jur. publici, 1. 2. p. 5. & seq. who hath there likewise treated of the most modern European customs.]]
[* ] Three means are particularly recommended by Grotius, of the rights of war and peace, 2. 23. 7. and Pufendorff of the law of nature and nations, 5. 13. 3. and 8. 6. 3. an interview or friendly conference, reference to arbitrators, and lot. But as for the last, besides that it can rarely have place but when a thing is to be divided, princes and states seldom choose to submit their fortunes to chance. The other methods are received in all civilized nations, and are most agreeable to right reason; for no wise man will take a dangerous way to obtain what he may have without force (lib. 1. §181), so true is what the soldier in Terence says, tho’ upon a ridiculous occasion,Omnia prius experiri, quam armis, sapientem decet.Qui scis, an, quae jubeam, sine vi faciat?
[[Terence, The Eunuch, lines 789–90: “The wise man should try everything before resorting to arms. For all you know, she will do what I tell her without force” (see Terence, vol. 1).
For this end are these public writings called Manifestos and Declarations, tho’ the former are more commonly published at the very point of striking the blow, rather to declare and justify the war, than with a view to decline and prevent it. See Jo. Henr. Boecler. exercitat. de clarig. & manifestis. Boecler (praeses) and Barnekow (respondens), Dissertatio de clarigatione et manifestis.]]
[* ] Grotius (of the rights of war and peace, 3. 4. 15. and 18.) is of a different opinion. But actions, because they are more glorious, and shew more greatness of mind, are not for that reason so obligatory, that it is unjust not to do them. Poison is not used by more civilized nations; but the Turks and Tartars poison their darts and arrows. We may therefore call them less humane on that score, but not unjust, because every thing is lawful against an enemy. Thus we may justly refer to the class of greatness of mind, what the Roman consuls are said to have wrote to Pyrrhus, “We do not choose to fight by bribery or by fraud,” Gell. Noct. Attic. 3. 8. But we cannot call Ehud unjust for killing Eglon, Jud. iv. 20; nor Jael for driving a nail into the temples of Sisera, Jud. iv. 21. or Judith for cutting off Holofernes’s head, if the story be true. Besides, the manners of nations, who pretend to greater politeness than others, often degenerate into vile dissimulation; of which see Bynker. Quaest. jur. publ. 1. 3. p. 17. [[Bynkershoek, Quaestionum juris publici libri duo, vol. 1, 17–18. “To such a height did flattery rise in the preceding age, and is it at present, that princes do not lay it aside even in war. For now it is common for enemies most politely to wish one another all prosperity, and to exchange compliments of condoleance. So do the letters of the States General to the King of England run, 10th July, 16th September, and 26th November 1666, and those of the King of England to the States General, 4th August and 4th October 1666, tho’ they were then preparing for destroying one the other, yet the states wrote, that the offices of friendship might take place amidst the rights of war, July 10. ep. 1666. So the King of France, tho’ he was in war with the King of England in the year 1666, sent an envoy to condole him upon the burning of London. It is indeed glorious to exercise humanity, clemency, and other virtues of a great mind in war, but it is silly and absurd to use such unmeaning unsincere words. For what is it but to use deceitful false words, to regret the burning of a city one would willingly have set fire to?” Are not these rare specimens of humanity? Shall we then pronounce C. Popilius Laenas Roman consul in 172 bc more unjust than those princes and states, who being saluted by Antiochus king of Syria, declared he would not return his salute till they were friends; and refused the King’s hand when he stretched it out to him? Polyb. Excerpt. legat. cap. 92. probably Polybius, Ex libris Polybii Megapolitani selecta de legationibus Liv. 45. 12. These are harsher methods, but not unjust, yea much more decent than hostile adulations and false compliments.]]
[* ] Agesilaus in Plutarch, p. 600, well distinguishes between an allowable stratagem and perfidy. There is there recorded an excellent saying of his: “To break the faith of a treaty is to contemn the Gods: but to outwit an enemy is a laudable, and withal a saving method.” [[Plutarch, “Agesilaus,” in Plutarch, Lives, vol. 5, p. 23. But what if an enemy had formerly proved treacherous and false? May we not then render like for like? I think not. For tho’ the perfidy of one of the contracting parties exempts the other from his obligation (l. 1. §413), yet this is to be understood of the same bilateral pact, the conditions of which are not fulfilled by one of the parties. But if we make a new pact with one who had not stood to his former, we are deemed to have passed over his former perfidy, and are therefore bound to fulfil our new contract.]]
[* ] This is granted by Grotius, l. 3. cap. 17. §3. but with a restriction. “It is the duty,” says he, “of those that are not engaged in a war, to sit still and do nothing that may strengthen him that prosecutes an ill cause, or to hinder the motions of him that hath justice on his side.” But because a neutral party ought not to take upon them, as it were, to sit as judges, and determine upon which side justice lies, but, on the contrary, to take no part in the matter, as Livy observes, 35. 48; hence it is evident, that there is no place for this restriction. See V. A. Corn. van Bynkersh. Quaest. jur. publ. 1. 9. p. 69.
[1 ] Heineccius (praeses) and Kessler (respondens), De navibus ob mercium illicitarum vecturam commissis.
[† ] Here many questions occur in Grotius, 3. 5. & seq. Pufend. 8. 6. 20, as how things taken in war are acquired? whether incorporeal things and actions, &c? But since all these things depend rather upon the customs of nations than the laws of nations, and many of them may be easily decided from the principles already explained, we shall not insist upon them. All these are handled by V. A. Corn. van Bynkershoek Quaest. jur. public. l. 1. cap. 4. & seq. in a masterly manner.
[* ] This right, since ever it hath been practised, hath been called Reprisals. The ancients not being acquainted with it, there is no word in the Latin language that properly expresses it, (Corn. van Bynkersh. ibidem. 1. 24). Grotius derives this right from the right of taking pawn, competent to every person (of the rights of war and peace, 3. 2. 7. 3.); and so likewise Bodinus de republica, 1. 10. [[Bodin, De republica libri sex. This was Bodin’s own translation of his Les six livres de la République. But this opinion is refuted by Hertius ad Pufendorff, 8. 6. 13 Pufendorf, Acht Bücher vom Natur- und Völkerrecht; and before him by Ziegler de jure majestatis, 1. 34. 8. Ziegler, De juribus majestatis where he asserts, §32. that this right proceeds rather from the rights of war. And certainly, if a republic may justly vindicate by war an injury done to it and its members (l. 1. §245), it may likewise lay its hands on the goods of others, for an injury done to any one of its subjects, unless the greater and not the less may be allowable.]]
[* ] And then in both these cases, it is most equal that recovered towns, cities, provinces, nations, should have the right of postliminy (§202), and thus recover their former rights, if their falling into the enemy’s hands was not by their own fault, or even if it be not very clear, that they could have made a longer or stronger opposition to the enemy. Hence, when the French Garisons having left the country, a dispute arose between the states of Utrecht and Friezeland about the right of precedency, upon pretext that the former had given themselves up without resistance, yet the province of Utrecht recovered its former place and state, Huber. Prelect. ad Dig. l. 49. tit. 15. §9. But the case would be quite different, if a city or province, which, unmindful of their faith to their Sovereign, had wilfully deserted and gone over to the enemy, should afterwards be recovered by war. For such would be justly deemed unworthy of this benefit, and therefore it is in the conqueror’s power and right to reduce them into any condition he pleases. Such examples did the Romans make of the Brutii, Lucani and Campani, who deserted to Hannibal; of Capua chiefly, which city was so far from having its ancient rights restored to it, that it was deprived of its municipal privileges, its right of magistracy, and its territories, and reduced into the form of a province, Liv. 26. 16. & seq.
[† ] Thus one of the confederate parties being stronger, engages to furnish the other not so powerful, a certain pecuniary subsidy, or a certain quota of ships, troops, or marines, and stipulates little or nothing to itself. In this case the treaty or alliance is unequal, in respect of the things to be done. But it is often provided by treaties, that one republic shall be bound to pay homage to another; not to undertake war without another’s consent; not to keep a fleet; to pay an annual tribute; to make use of no iron or iron-smiths, except for agriculture, 1 Sam. xiii. 19, 20. which Pliny, hist. nat. 34. 14. says was done in the first treaty of Porsena with the Roman people. All these are unequal treaties with respect to the manner of doing, since the one makes itself the other’s client by this manner of treating.
[* ] To these treaties Grotius (of the rights of war and peace, 2. 15. 5. 3.) refers leagues which provide for the entertainment of strangers, and the freedom of commerce on both sides, as agreeable to the law of nature. But since the law of hospitality comprehends many good offices, which are not perfectly due by the law of nature alone (of which Jo. Schilterus has treated very accurately) [[Schilter, De jure hospitii, and since the permission of commerce with foreigners depends upon the will of the supreme powers in every state (§187), such leagues can hardly in any case be referred to those, by which one nation stipulates to itself from another nothing more than is due by the law of nature. As to leagues of commerce, that there is not so much difficulty about any others as about them, is proved by Jo. Jac. Mascou. dissert. de foeder. commerc. §6. Mascov (praeses) and Plessen (respondens), De foederibus commerciorum by an example from Jac. Basnag’s Hist. Belg. tom. 1. p. 51. and 439. Basnage, Annales des Provinces-Unies. And the Athenians, Smyrnians, and other republics, struck medals to be monuments of such treaties, as the same author has shewn from Ezek. Spanheim. de usu & praestantia numismatum, diss. 3. p. 143. & dissert. 13. n. 4. as likewise in his Orbe Rom. cap. 4. Spanheim, Dissertationes de praestantia et usu numismatum antiquorum; Spanheim, Orbis Romanus and from Vaillant de numis imp. Graec. p. 221. Vaillant, Numismata imperatorum. But who ever thought a simple league of mere friendship worthy of being commemorated by such monuments?]]
[* ] Upon these treaties it is worth while to consult Ulr. Obrecht. diss. de sponsore pacis, the seventh of his Academic dissertations, and Henr. Cocceii de guarantia pacis, Franckfort 1702. [[Ulrich Obrecht (1646–1701), German jurist and historian, professor of history and eloquence in Strasbourg; see Obrecht (praeses) and Stauffer (respondens), Sponsor pacis sive de garantia dissertatio. Cocceji (praeses) and Stephani (respondens), Disputatio juris gentium publici de guarantia pacis. The principal question that is moved on this subject is, whether the guarantees of a peace be obliged in general to enter into a war-alliance with the injured party, for any breach of peace whatsoever? But Pufendorff (of the law of nature and nations, 8. 8. 7.) has justly denied that the guarantees are bound to send aids in any war that takes its rise from other reasons than the violation of the articles of peace of which they are guarantees. For as it would be absurd for a creditor to demand a debt from a surety, contracted by the principal debtor after the suretiship; so it would be no less unjust for a prince or a state to demand that a guarantee should take up arms in his defence, if the war takes its rise from some new cause. For a guarantee is only bound, when the peace of which he was surety is broken. But peace (as Grotius has well observed, 3. 20. 27. & seq.) is broken, if any thing be done contrary to what is included in every treaty of peace, or may be inferred from the very nature of peace in general, or to the express articles of a particular peace. And the matter is clear enough in general theory; yet when the question comes to be, whether a particular deed be a violation of a certain treaty of peace; it is not so easily determined, as very recent examples abundantly prove.]]
[* ] Here it is usually asked, when that time commences? Grotius 3. 21. 5. insists that the day from which the measure of the time is to commence, is not included within that measure or compass of time: but he is solidly refuted by Pufendorff of the law of nature and nations, 8. 7. 8. And therefore, if for instance, it should be agreed that there shall be a truce from the first of July to the first of September, both these days are included; and in like manner, if from the first of June for thirty days, the first day of June is the first day of the truce, and the thirtieth day is the last day of it, so that the day after it is lawful to take arms.
[† ] This question arose when the Romans changed their regal government. For the Sabines having contracted with their Kings, upon the change of the government they declared war against the Romans, pretending that the Roman people, in a popular state, had no right to the advantage of treaties made with their Kings, Dionys. Halicarn. Antiq. l. 5. p. 307. In the year from the foundation of Rome 267, the Hernici had recourse to the same plea, denying that they had ever made any treaty with the people of Rome, and asserting that their treaty made with Tarquin had ceased, because he being dethroned had died in exile, Dionys. Hal. 8. p. 530. But both these nations having made a treaty upon their being conquered by the Roman arms (See Dionys. ib. l. 4. p. 252. & seq.) it is indisputable that they had not contracted with Tarquin only, but with the Roman state, and therefore their treaties continued obligatory even after his expulsion.
[* ] This question really happened when Hannibal besieged Saguntum. For the Romans complained that Hannibal had unjustly attacked them, because the Carthaginians were bound by their treaty with the Romans not to annoy their allies. The Carthaginians insisted, on the other hand, that the Saguntini were not comprehended in their treaty, because they were not allies to the Romans at the time it was made, Polyb. hist. 3. 29. Liv. 21. 19. But tho’ both these authors take the part of the Romans, I do not hesitate to say with Grotius, 2. 16. 13. that this treaty could not hinder the Carthaginians from making war against the Saguntines, and yet the Romans had a right to make new allies, and to defend them against the Carthaginians. For the Romans had not in the treaty made any provision for their future allies, and could not oblige the Carthaginians to understand as comprehended in the treaty things not thought of in making it; nor did the Carthaginians stipulate to themselves from the Romans, that they should make no new allies; and therefore they had no right to object against their defending their new allies.
[* ] There are two remarkable instances of this in the Roman history, the Sponsio Caudina & Numantina, Liv. 9. 8. & seq. and 55. 15. The Romans would not stand to the treaty by which Posthumius Coss. and the other Generals had extricated the army at the Furculae Caudinae, nor to that of Hostilius Mancinus with the Numantines, pretending that both were done without their orders. But who can doubt but Generals, when an army is in danger, have all the power necessary to deliver them from it, and which the safety of the army and the state requires. Such sponsions ought therefore either to have been confirmed, or things ought to have returned to the posture they were in before the sponsions, if the Romans had not been more ingenious in devising cavils, than faithful in observing their treaties. See Christ. Thomasius and G. Beyerus de sponsionibus Numantina & Caud. [[Thomasius (praeses) and Ryssel (respondens), Dissertatio juris publici ad l. 4. de captiv. & l. ult. de legation; Thomasius (praeses) and Brix von und zu Montzel (respondens), De sponsione Romanorum Caudina. There does not appear to be a dissertation by the jurist Georg Beyer (1665–1714) on this subject.]]
[† ] Thus before the Mosaic law was given, Abraham and Isaac made a covenant with Abimelech, and Jacob with Laban, who most certainly worshipped idols, Gen. xxi. 22. xxvi. 26. xxxi. 44. And after the law of Moses was given, we know David and Solomon made leagues with Hierom King of the Tyrians, 2 Sam. v. 11. 1 Kings v. 12. We likewise read in the sacred records, of the alliances of Abraham with Escol and Aner, Gen. xiv. 13. of David with Achish King of the Philistines, 1 Sam. xxvii. 2. & seq. and with Toi King of Hemath, 2 Sam. viii. 10. of Asa with Benhadad, 1 Kings xv. 18. & seq. The objections brought from Scripture are answered by Grotius.
[* ] But this is to be understood, not of pretended but real danger. For that false pretexts are used by Sovereigns, as well as by private persons, is daily complained. And the excuses and delays of friends are elegantly represented by Aesop in the fable of the Lark in Aulus Gellius Noct. Attic. 2. 29. who there advises every one to place his chief dependence on himself, and not on his friends or allies, who often promise mountains of gold, and do nothing. This is likewise the counsel of Ennius in his Satires, preserved to us by the same Gellius.Hoc erit tibi argumentum, semper in promtu situm:Ne quid exspectes amicos, quod tute agere possis.
[[From the Satires of the Roman poet Ennius, quoted in Gellius, Attic Nights, bk. II, chap. xxix, 20: “This adage ever have in readiness; Ask not of friends what you yourself can do.”
[* ] And yet such truces not unfrequently are called peace, because not only all hostile acts cease, but even a state of war ceases, as if the contending parties had laid aside their hostile intentions. Thus we are told by historians, that the Lacedemonians made peace for fifty years; the Romans for a hundred years, Justin. hist. 3. 7. Livy. 1. 15. Sozom. hist. eccles. 9. 4. [[Sozomenos (fifth century ad), Greek ecclesiastical historian (see Sozomenos, Historia ecclesiastica). And we have more recent examples of such truces between Spain and Portugal, Sweden and Denmark, England and Scotland, Venice and the Turks, who seldom make peace with Christians, but for a limited period of time. See Pufendorff 8. 7. 4. & ibidem Hertius, p. 1249.]]
[† ] Provided it be evident, from the articles of the peace, that the conquered submitted to these terms. For if by malitious cavil, invidious interpretation, or by open force, harder terms are obtruded on the conquered than they consented to, they have just reason to complain that they are injured. Thus Q. Fabius Labeo egregiously cavilled, when Antiochus having promised to deliver up to him the half of his navy, he ordered all his ships to be cut in two, and thus ruined his whole fleet, Valer. Maxim. 7. 3. which piece of false cunning he had perhaps learned from the Campani, who, as Polyaenus Stratag. 6. 15. [[Polyaenus, Stratagems of War tells us, had thus destroyed the arms of their enemies, one half of which was to be surrendered to them by treaty. And how detestable was the open force with which the Galli Senones insulted the Romans, with whom, tho’ conquered by them, they had transacted, obliging themselves to pay them a thousand pound weight of gold, when they not only brought false weights, but put a sword into the scale with the gold, saying insolently, vae victis esse “Alas for the conquered”, Liv. 5. 48.]]
[* ] And hence we may see what ought to be answered to Pufendorff, who maintains against Grotius, that this exception takes place. See Grotius l. 2. cap. 17. §20. & ib. 3. cap. 18. §11. and Pufendorff of the law of nature and nations, 8. 8. 1. For these are two very different things, viz. to oppose an exception of fear, and to renew the war because the conquering party had taken occasion to do something contrary to the articles of peace. In the latter case we readily grant there is a just reason for war (§117); but we deny that the first is valid. But these two are not sufficiently distinguished by Pufendorff, as is plain from the example he brings. Polyb. hist. 3. 30. asks whether the Carthaginians had just reasons for their declaring the second punic war against the Romans? And he thinks they had, on this account, that the opportunity the Carthaginians took to revenge themselves, was of the same kind with that the Romans had taken to injure them; which is the same as if he had said, that the Carthaginians might justly plead the exception of fear, because, while they were embroiled in troubles and confusions at home, the Romans had forced them to give up Sardinia, and extorted a vast sum of money from them. But tho’ in the articles of peace between the Romans and the Carthaginians, nothing was transacted concerning Sardinia, yet the Romans acted unjustly, and contrary to their treaty of peace, in taking advantage of the confusions the Carthaginians were involved in at home, to make themselves masters of Sardinia, as Polybius himself acknowledges, 1. 88. And therefore the Carthaginians did not object an exception of fear against the treaty of peace which put a period to the first punic war, but they complained that this treaty was broken by the Romans, by their taking occasion from their distress to force them to give up Sardinia.
[2 ] Boxhorn, Institutionum politicarum libri tres.
[* ] Thus in the year 1488, the people of Bruges having invited Maximilian I. to their city, forced him by an unparalleled treachery to a very shameful pact with them: But so far was the Emperor Frederick, from ratifying it, that in a convention of the nobles at Mechlin, it was decreed that Maximilian was not bound by these promises, Jo. Joach. Muller Reichs-tags-Theatr. in Maximilian I. act. 1. cap. 8. [[Müller, Des Heiligen Römischen Reichs, Teutscher Nation, Reichs Tags Theatrum, wie selbiges, unter Keyser Maximilians I. Maximilian I was king of Germany and later Holy Roman Emperor from 1493 to 1519. And surely the people having by knavery and unjust force made a prisoner of the King till he should promise whatever they were pleased to demand of him; such an extorted promise was no more binding upon him than the promise a robber on the highway forces from one.]]
[* ] The same is to be said of hostages, i.e. persons pledged for the faith of a state, whether they voluntarily offered themselves, or they were given up as such by the supreme power in a state. Grotius of the rights of war and peace, 3. 4. 14. In the former case they are bound by their own consent; in the latter, by the convention between their sovereign and the other state with whom the peace is made. Whence it is plain, 1. That hostages may not fly. Nor, 2. a republic receive them by the right of postliminy. Therefore, when Cloelia being a hostage, fled, Porsena demanded that the hostage might be sent back, threatening to hold the treaty as broken if it was not, and the Romans acted justly in delivering back this pledge of their treaty. 3. That hostages ought not to be treated as slaves, or even as prisoners of war. And therefore, 4. That their estates cannot be confiscated as persons incapable of testating, tho’ this was the old rigid Roman law, l. 31. D. de jure fisci. 5. That their obligation expires with their persons; and therefore, that when one hostage dies, ransom only is due for the other. 6. But if the treaty of peace be broken, the hostages may be kept in chains, and spoiled of their liberty and effects, tho’ it be very hard, to kill them, if the treaty be violated without any fault of theirs. But of all this see Grotius of the rights of war and peace, 3. 20. 52. & seq. Pufendorff of the law of nature and nations, 8. 8. 6. and Schilter. opusculum singulare de jure obsidum. [[Schilter, De jure et statu obsidum dissertatio juridica.]]
[3 ] Bynkershoek, De foro legatorum tam in causa civili, quam criminali liber singularis.
[* ] If there are evident proofs of this hostile disposition, neither a prince nor a republic is obliged to receive an ambassador, and may command him to get out of their territories, as is usually done when war begins to rekindle between two states, the treaty of peace being broken: For we are not obliged to admit an enemy into our bosom or house, and therefore not his minister or commissioner.
[4 ] Fredericus de Marselaer (1584–1650), author of the treatise Legatus libri duo. Abraham van Wicquefort (1598–1682), author of a treatise on ambassadors (L’ambassadeur et ses fonctions) published in French, German, and English editions in the early eighteenth century.