CONCLUSION.
Admonitions to the observance of good faith--Peace always to be kept
in view in the midst of war--Peace beneficial to the conquered--To
the conqueror--And to be chosen in cases where the issue is
doubtful--To be religiously observed--Prayer--Conclusion of the
work.
I. Here seems to be the proper place to bring this work to a
conclusion, without in the least presuming that every thing has been
said, which might be said on the subject: but sufficient has been
produced to lay a foundation, on which another, if he pleases, may
raise a more noble and extensive edifice, an addition and improvement
that will provoke no jealousy, but rather be entitled to thanks.
Before entirely dismissing the subject, it may be necessary to observe,
that, as in laying down the true motives and causes, that alone will
justify war, every possible precaution at the same time was taken
to state the reasons for which it should be avoided; so now a few
admonitions will not be deemed superfluous, in order to point out
the means of preserving good faith in war, and maintaining peace,
after war is brought to a termination, and among other reasons for
preserving good faith the desire of keeping alive the hope of peace,
even in the midst of war, is not the least important. For good faith,
in the language of Cicero, is not only the principal hold by which
all governments are bound together, but is the key-stone by which the
larger society of nations is united. Destroy this, says Aristotle, and
you destroy the intercourse of mankind.
In every other branch of justice there is something of obscurity, but
the bond of faith is clear in itself, and is used indeed to do away
the obscurity of all transactions. The observance of this is a matter
of conscience with all lawful kings and sovereign princes, and is the
basis of that reputation by which the honour and dignity of their
crowns are maintained with foreign nations.
II. In the very heat of war the greatest security and expectation of
divine support must be in the unabated desire, and invariable prospect
of peace, as the only end for which hostilities can be lawfully begun.
So that in the prosecution of war we must never carry the rage of it so
far, as to unlearn the nature and dispositions of men.
III. These and these alone would be sufficient motives for the
termination of war, and the cultivation of peace. But apart from all
considerations of humanity, the INTERESTS of mankind would inevitably
lead us to the same point. In the first place it is dangerous to
prolong a contest with a more powerful enemy. In such a case some
sacrifices should be made for the sake of peace, as in a storm goods
are sometimes thrown overboard to prevent a greater calamity, and to
save the vessel and the crew.
IV. Even for the stronger party, when flushed with victory, peace is
a safer expedient, than the most extensive successes. For there is
the boldness of despair to be apprehended from a vanquished enemy,
dangerous as the bite of a ferocious animal in the pangs of death.
V. If indeed both parties are upon an equal footing, it is the opinion
of Caesar, that it is the most favourable moment for making peace, when
each party has confidence in itself.
VI. On whatever terms peace is made, it must be absolutely kept. From
the sacredness of the faith pledged in the engagement, and every
thing must be cautiously avoided, not only savouring of treachery,
but that may tend to awaken and inflame animosity. For what Cicero
has said of private friendships may with equal propriety be applied
to public engagements of this kind, which are all to be religiously
and faithfully observed, especially where war and enmity have ended in
peace and reconciliation.
VII. And may God, to whom alone it belongs to dispose the affections
and desires of sovereign princes and kings, inscribe these principles
upon their hearts and minds, that they may always remember that the
noblest office, in which man can be engaged, is the government of men,
who are the principal objects of the divine care.
INDEX
Abandoned property, title to, 107, 111.
Acceptance: Necessity of, in promise to convey a right, 139.
Acceptilation, 111.
Accessories to crimes, 197, 257.
Accomplices, punishment of, 256.
Acquisitions: Of property in war, 334 _et seq._, 346.
Of dominion, 379.
Actions at law: Stipulations as to, in treaties, 390.
Admiralty, 146.
Affirmations, 164, 165.
Agency, 339, 412.
Agents: Acts of, binding on principal, 138, 139, 412.
Agreements: Special and exclusive, 101.
Between citizens of different countries, 136.
Alexandrinus, Clemens, 52.
Alienation: Of things by right of war, 353, 389.
Of public dominion, 386.
Alliances: Between states, partnerships, 146.
Unequal, 158, 170.
Allies: Aid to, 173.
Word construed, 183.
Causes justifying participation of, in war, 285, 287.
Rewards to, 341.
Ambassadors: Promises of, binding, 139.
Ratification of treaties made by, 167.
Inviolability of, 202, 204.
Must be duly accredited, 202.
Sovereign states may send, 203.
Refusal to receive, 204.
Exemptions, 205, 209, 210, 211, 313.
Punishment of, for crimes, 208.
Passage through foreign states, 209.
Suite and personal effects of, 211.
House of, as asylum, 211.
Debts contracted by, 212.
Ambrose, 54.
Andronicus, 24.
Antoninus, Marcus, 66.
Antoninus, Pius, 112.
Aptitude, 19.
Arbiter, office of, 398.
Arbitration, 84, 276, 397.
Arcifinium, 106.
Aristotle, 19, 20, 22, 24, 61, 62, 64, 76, 118, 120, 190, 218, 251,
268.
Asylum, right of, 260.
Augustine, 58, 74.
Aurelius, Marcus, 52, 68.
Barbeyrac, 173, 392.
Blackstone's Commentaries, 29, 61, 86, 100, 136, 154, 155, 156, 177,
182--_notes_.
Bodies politic, privileges of, 262.
Boundary, rivers as, 107.
Breach of peace, 395.
Burial, right of, 213 _et seq._
Burke, Edmund, 282 _note_.
Caduceum, use of, 320.
Caesar, Julius, 59.
Captures in war, 334, 369.
Title to, 335, 336, 338.
Things immovable, 339.
Things movable, 340.
Restoration of, 392.
Cargo, in enemy's ships, title to, 337.
Cassius, 60, 74.
Cato, 59, 77.
Causes of war, justifiable, 85.
Chirographarii, 173.
Chrysostom, Dio, 25.
Cicero, 18, 23, 24, 31, 34, 35, 60, 68, 78, 86, 89, 92, 137, 191, 208,
214, 215, 268, 283, 317, 379.
Civil law: Relation of, to law of nature, 91.
And interpretation of treaties, 194.
Prizes taken from Pirates, 357.
Right of postliminium under, 357.
Clarigation, 319.
Commerce, treaties of, 169, 170.
Commissions: Special, of ambassador, 167.
Variations from, 188.
Common right to actions, 99.
Common right to things, 99.
Community of goods, 86.
Of lands, 88.
Compensation, defined, 382.
Compromise: As method of settling national disputes, 276.
Conditional surrender, 400.
Conference: To settle disputes of nations, 276.
Conqueror, rights of, 399.
Conquest, rights resulting from, 348, 399.
Consent to conventions, 415.
Consideration of contracts, 136, 138.
Constantine, 53, 54.
Contracts: Expressed and implied, 100, 145.
Between citizens of different countries, 136.
Consideration for, 136, 137.
Of agents, 137.
Exchange, 145, 146.
Revocation of, 145.
Of sale, 146, 151.
Mixed, 147.
Equality in, 148.
Letting and hiring, 153.
Fraudulent, 199.
Of sovereigns, 387, 413.
Contributions levied for future security, 373.
Conventions: Public and private, 166.
Public, division of, 167.
Requiring ratification, 167, 174, 412, 414.
Power to make, in monarchies, 168.
Resting in law of nature, 168.
Of commerce and amity, 169.
Of peace, 170.
Obligations of negotiator, 174.
Truces, 403.
Made by subordinates, 411.
Tacit consent to, 415.
Corporeal rights, 85.
Countries, names of, 392.
Creditors, personal, 173.
Crimes: Principals and accessories, 197, 198, 257.
And misdemeanors, 241.
Damages, 196, 197, 199, 200, 388.
Debts, individual, effect of war upon, 391.
Deception, innocent, 302.
Declaration of war, 318, 321.
After truce, not necessary, 404.
Defense: A justifiable cause of war, 75.
Right of, 395.
Demand of restitution, 319.
Demosthenes, 74, 81, 170, 240, 310.
Deserters: Not entitled to right of postliminium, 355, 390.
Dictator, sovereign power of, 72.
Dionysius, 61, 74, 98, 163.
Disputes of nations, methods of settlement, 276.
Divided and assigned land, 106.
Dominion, acquisition of, 372.
Duration of truces, 404.
Duties: Right to impose, on goods in transit, 97.
Duty of citizen to prevent war, 286.
Eliminium, 351.
Enemies: Furnishing aid to, 293-321.
Public, 314.
Killing of, 325, 327, 359.
Foreign residents may become, 327.
Property of, right to destroy, 332, 365, 366.
Forbearance toward, 373.
Good faith between, 379.
Engagements, 167.
Of sovereigns or states, 387.
Epictetus, 22.
Equity: A species of justice, 190.
In interpreting treaties, 191.
In matters of arbitration, 398.
Euripides, 22, 78.
Exchange, contracts of, 145.
Extradition, 258, 259.
Factors: Acts of, bind merchants, when, 139, 412.
Faculty, definition of, 19.
Falsehood, discussed, 299 _et seq._
Fecial law of Rome, 319.
Federal Union, 62, 121.
Ferae naturae, 86.
Rights of sovereign as to, 91.
Fishing, a common right, 101.
Florentinus, 19, 35.
Foreign residents, rights of, 98, 327.
Free passage through countries, right of, 95, 97.
Permission first asked, 96.
Funeral rites, 214.
Galen, 33, 62.
Good faith, foundation of all treaties, 385, 417.
Goods in enemy's ships, title to, 337.
Government: Change of form of, effect upon debts, 121.
Effects on treaties, 185.
Mixed, 349.
Governments, established for what, 68.
Gregory of Tours, 69.
Guaranty of performance by another, 143.
Heraclitus, 24.
Hermogenianus, 36.
Herodotus, 66, 68.
Hesiod, 23, 24, 68.
Hiring, 153.
Homicide, excusable, 29.
Hostages: Right to kill, 330, 364.
Appendages to treaties, 400.
Immunity of Ambassadors, 202.
Incorporeal rights, 85, 309, 346.
Of a state lost by conquest, 349.
Indemnity: A justifiable cause for war, 75.
Injunctions, 170.
Injuries to property: Robbery, 81.
Redress for, 311.
Amounting to breach of peace, 397.
Insurance, contract of, 156, 157.
Interest, lawfulness of, 154, 156.
Interpretation: Of laws, 136.
Of promises, 137.
Of treaties, 176 _et seq._
Words, taken in common acceptation, 177.
Words of art, 177, 181.
Obscure words, 178.
Probable consequences, 179.
Context, 179.
Motive, 180.
Allies, construed, 183.
Absurd conditions, 188.
And law of nations, 194.
Of peace, 389, 392, 401.
Names of countries, 392.
Josephus, 35, 50.
Justifiable causes of war, 73, 75, 85, 247, 285.
Justinian, 58.
Kings, accountability of, 69.
Not all made by the people, 67.
Lactantius, 23, 74.
Lakes, when property, 90.
Lands: Three-fold division of, 106.
When considered as taken possession of, in war, 336, 339.
Postliminium rights of, 355.
Waste, 90, 91.
Law: Basis of, 136.
Fecial, of Rome, 319.
Lawful war, 18, 31, 278, 324.
Law of Nations, 23.
How proved, 25, 101.
Voluntary, 158.
And interpretation of treaties, 194.
Use of term, 296.
Positive, 297.
Right to destroy property of enemy under, 332.
Respecting captures in war, 334, 336, 338.
Law of nature, 22, 79,
Relation to civil law, 91.
Civil customs not part of, 248.
Ignorance of, excusable, 248.
As to things captured in war, 334.
Laws: Interpretation of, 136.
Power to repeal, 238.
Letters of marque and reprisal, 278, 311.
Letting and hiring, 153.
Lie, what is a, 299.
Livy, 64, 73, 78, 114, 167, 170, 206, 317, 332.
Losses of individuals in war, 388.
Lot, as method of settling national disputes, 277.
Marque and reprisal, letters of, 278, 311.
Mediation, 84.
Mediator, office of, 398.
Money, variations in value, 153.
Monopoly, 101, 152.
Moral distinctions, as to acts, 274 _et seq._
Mosaic Law, 26-28.
Not binding upon Christians, 29.
Mutius, Quintius, 36.
Nations, law of, 23.
Voluntary, 158.
Union of, rights continue, 121.
Restoration of conquered, 354, 355, 390.
Natural Right, 21.
Nature, law of, unalterable, 22.
Proof of existence of, 24.
Naval associations: Apportionment of losses, 158.
Necessity, appropriation of property under, 92, 93.
Negotiation of treaties, true basis for, 385.
Neutral soil: Right of belligerent to, 93.
Captures on, 344.
Goods, 337.
Neutrals, rights and duties, 377.
Oaths: Sanctity of, 160 _et seq._
Meaning of, 161.
Validity and form of, 162.
Effect and substance of, 163, 381.
Authority of sovereign over, 164.
Obligations: Arising from property, 123.
Imperfect, 134.
Resulting from injury, 195.
Enforcing performance of, 287.
Promises, 131, 135.
Occupancy, title by, 90.
Occupatory lands, 106.
Offenses against society, punishment of, 258.
Origen, 49.
Ovid, 32.
Pardons, lawfulness of, 236, 238.
Parley, sign of, 416.
Partnerships, 146.
Trading--proportion of profits and losses, 157.
Paulus, 21.
Peace: The object of wars, 379.
Treaties of, 385.
Who may make, 386.
Interpretation of, 389.
Breach of, 393.
Preservation of, 417.
Penal statutes, construction of, 181.
Penalties: Remitted, 391.
Special, 396.
Payment of, effect on wars, 408.
Performance of contract, guaranty for, 143.
Piracy, sovereign answerable for, 200.
Pirates, treatment of, 380.
Plato, 75, 93, 224, 226, 229.
Pledges: Appendages to treaties, 400.
Redemption of, 401.
Pliny, 36, 254.
Plutarch, 23, 24, 66, 93, 221, 226, 227, 235.
Polybius, 23, 73, 208.
Pomponius, 159.
Ponds, when property, 90.
Porphyry, 24.
Possession: Uninterrupted, transfers property, 114.
Of property, at conclusion of war, 390.
Right of, 399.
Posthumous rights to property, 114.
Postliminium: Definition of, 169, 331.
Right of, 314, 336, 351, 354, 390, 405.
Horses, mules, and ships under law of, 352, 405.
Deserters, 355, 390.
Lands, 355.
Movable property, 356.
Things useful in war, 356.
Premium of insurance, 156.
Prescription, law of, as applied to a sovereign, 115.
Price, governed by demand, 151.
Prisoners: Surrender of, 258, 259.
Killing of, 328, 363.
As slaves, 345.
Ransom of, 347, 410.
Right of postliminium, 352, 390.
Rights of, on release, 353.
Right of making, 357.
Privateers, 200.
Private right, 20.
Privileges of bodies politic, 262.
Prizes: By right of war, 337, 343, 346.
Taken from pirates, 357.
Prohibitions in treaties, 193.
Promises: Obligation of, 131, 135, 379, 381.
Perfect, 135, 194.
Interpretation of, 137.
Obtained by fraud or fear, 137.
Erroneous, 137, 142.
Valid, 138.
Of ambassadors, 139.
Revocation of, 140.
Acceptance of, 139, 141, 415.
With conditions, 142.
Property: Means of acquiring, 103.
Obligations arising from possession of, 123 _et seq._
Alienated by rights of war, 353, 389.
Restoration of, taken in unjust war, 375.
Possession of, for long time may not give right of, 109,--but
see 114.
Redress of injuries to, 311, 318.
Of enemy, right to destroy, 332, 365, 366.
Title to, 335, 90.
Possession of, after war, 390.
Appropriation of, on ground of necessity, 91, 92.
Of subjects, liability of for debts of states, 308, 370, 387.
Title to, as between enemies, 338.
Use of, 94.
Acquisition of, in war, 340.
Captured, 369.
Idea of how established, 89.
When right of, ceases to exist, 117.
Movable and immovable, 88, 356.
Things not reducible to, 89.
In lakes, ponds, and rivers, 90.
Abandoned, 107, 111.
Puffendorf, 193.
Punishment: A justifiable cause of war, 75.
Defined, 221.
Who may inflict, 223, 226, 228.
Object of, 224, 226, 229, 232, 240, 247, 370.
Under the Gospel, 230.
Capital, 233.
Wicked acts not subject to, 235.
Proportioned to offense, 243 _et seq._
Of offenses against God, 249 _et seq._
Communication of, upon accomplices, 256.
Offenses affecting society, 258.
Of non-participants, 262.
Of surety, 264.
Of children for parents' sins, 266.
Classes exempt from, 362.
Of hostages, 364.
Right to claim property as, 391.
Quintilian, 24, 89.
Ratification of treaties and conventions, 167, 175, 414.
Recovery of things alienated by rights of war, 353.
Redemption of pledges, 401.
Redress, method of obtaining, 311, 318.
Religion, based on four truths, 250.
Remedial statutes, construction of, 181.
Reprisal: Letters of Marque and, 278.
A method of obtaining redress, 311, 312, 327, 370.
Residents, foreign, rights of, 97.
Restoration: Of subjugated people, 354, 355.
Of property, 375, 392.
Right: To movables by occupancy, 104.
To impose duties on goods in transit, 97.
Common-passage through countries, 95, 97, 99.
Of burial, 213.
Violation of, 301.
Of dominion, acquisition of, 379.
Of governors and governed, 19.
Of prisoners, 353.
Definition and signification of, 18, 19, 20.
To actions, 99.
Private, 20.
Superior, 20.
Of asylum, 260.
Voluntary, 25.
Of making war, 386.
Of possession, 399.
Rights: Human and Divine, 25.
Sources of, 195.
Disputed, methods of settling, 276.
Of property, 307.
Of persons, 19, 307, 391.
Resulting from conquest, 348.
Arising out of law of nations, 219.
Real, 19.
Of war, 18, 332, 336, 381.
Corporeal and incorporeal, 85, 309, 346.
Of temporary residents, 98.
Of native, 92.
River: Effect of change in course of, 106.
Middle of boundary between territories, 107.
When property, 90, 104.
Robbery, right to kill robber, 81.
Romanus, Clemens, 52.
Sacred things not exempt from destruction by enemy, 332.
Safe conduct, a, 408.
Expiration of, 409.
Sales and purchases: Right of restricting, 100.
When contract complete, 151.
Sallust, 206.
Salvian, 51.
Sea: Open, not property, 90.
Portions of, may become property, 104.
Self-defense, 77.
Seneca, 19, 24, 74, 75, 80, 92, 108, 118, 135, 192.
Services, gratuitous, 144.
Settlement of national disputes, methods of, 276.
Ships. Owners bound by acts of masters of, when, 139.
Goods found in enemy's, 337.
Under law of postliminium, 352.
Silanian, Decree, 53.
Slavery, 345.
Slaves: Prisoners of war, 345.
Right of postliminium, 352.
Smith, Adam, 101 _n_.
Soldiers, compensation to, 341, 343.
Sovereign power: Not in the people in every case, 63 _et seq._, 120.
Ceases, when, 117.
To declare war, 316, 386.
Sovereigns: Elective and hereditary, 71.
Responsibility for piracy and robbery, 200.
For acts of subjects, 257.
Bound by acts of commissioner, 412.
Sovereignty: Its nature and where it resides, 60, 62, 70, 71, 103.
Not forfeitable by act of delinquency, 80.
Spies, treatment of, when captured, 331.
Sponsio, 167.
State: Definition of, 25.
Sovereign, 62.
Conquered, privileges allowed to, 374.
Division of, into constituent parts, by consent of war, 121.
States: When immortal, 117.
May lose political existence by conquest, 348, 349.
States General: Three divisions of, 70, 71.
Power of, 71.
Of Holland, 337.
Statutes: Penal construed strictly; remedial liberally, 181.
Strabo, 62, 98.
Stratagem, use of, in war, 294 _et seq._
Subjects: Of sovereign, detention of, 311.
Liability to attack, in time of war, anywhere, 327.
Superior right, 20.
Supply of a thing affects its price, 151.
Surety: Punishment of, 264.
Bound by consent, 308.
Surrender: Of a people, in war, 390.
Conditional, 400.
Sylla, Lucius Cornelius, 57.
Tacitus, 64, 68, 87, 106, 110, 213.
Taxes on goods in transit, 97.
Terminus, rites of, 373.
Territory long possessed, title to, 110.
Tertullian, 49, 51, 52.
Thucydides, 60, 174.
Time: As an element of right of property, 109.
Immemorial, 113.
Transit, goods in, 97.
Treaties: Public and private, 166.
Equal, 170.
Unequal, 158, 170, 171, 184.
Definition of, 167.
Requiring ratification, 167.
Power to make in monarchies, 168.
Resting in law of nature, 168.
Of commerce and amity, 169, 170, 185.
Of peace, 170, 386, 389, 391.
Renewal of, 173.
Effect of violation of, 174.
Interpretation of, 176 _et seq._ (See Interpretation of Treaties.)
Personal and real, 184.
Where governments change form, 184, 185.
Of peace, material part of, 386.
Stipulations as to actions at law, 390.
Hostages and pledges under, 400.
Truces: Definition, 403.
Duration of, 404.
Public notice of, 405.
Breach of, 406,
Granting of, 414
Ulpian, 21, 34, 36, 129, 162, 166, 263, 333.
Unlawful acts, 305.
Usucaption, law of, as applied to sovereigns, 115.
Usufruct, 155.
Usufructuary property, 86.
Usury, 155.
Valentinian, 67.
Value of a thing governed by what? 150.
Of money, 153.
Vasquez, 80, 239, 286, 388.
Vattel, 101, 158, 167, 169, 177, 203, 297, 387, 388--_notes_.
War: Definition of, 18, 403.
Derivation of word, 18.
Division of, public, private, and mixed, 55.
All, not repugnant to law of nature, 34, 36.
Private, 55, 56, 83.
Justifiable causes, pretexts, and beginning of, 73, 75, 247, 285.
Defense, indemnity and punishment, 75, 245.
Time of beginning, 284.
Object of, 379.
Effect upon debts, 391.
Lawfulness of, 18, 31, 278, 324.
Under divine voluntary law, 36, 40.
Aid to parties to, 173.
Causes, justifying participation of allies, 285.
Lawful means used in, 290, 363.
Use of stratagem, 294.
Suspicion of hostile intentions, 83.
Injury to property, 85.
Demand of surrender of citizen, 285.
Precautions against, 280 _et seq._
Right of belligerents to neutral soil, 93.
Unjust, causes of, 267 _et seq._
Avoidance of, 280 _et seq._, 418.
Declaration of, 318, 321, 404, and forms, 319.
Right to make, 386.
Losses of individuals by, 388.
Public, formal and informal, declared by sovereign, 57, 316, 317,
386.
Right to avert, and to punish wrongs, 83, 200, 247, 280.
"Wealth of Nations," 101 _n_.
Withernam, 311.
Wrongs: Division of, private and public, 61.
Sovereign power may avert and punish, 83.
Xenophon, 32, 93.
FOOTNOTES:
[1] The eighth Section is omitted, the greater part of it consisting
of verbal criticism upon Aristotle's notions of geometrical and
arithmetical justice; a discussion no way conducive to that clearness
and simplicity, so necessary to every didactic treatise.--TRANSLATOR.
[2] The law, by its silence, permits those acts, which it does not
prohibit. Thus many acts, if they are not evil in themselves, are no
offence, till the law has made them such. Of this kind are many acts,
such as exporting gold, or importing certain articles of trade; doing
certain actions, or following certain callings, without the requisite
qualifications, which are made punishable offences by the Statute-Law.
Those actions, before the prohibition was enjoined by the law, came
under the class of what Grotius calls permissions.
[3] By moral necessity is meant nothing more than that the Laws of
Nature must always bind us.
[4] To explain the meaning of Grotius in this place, recourse must
be had to first principles. Thus the law of nature authorizing
self-defence in its fullest extent, the laws of nations, which
authorize war for the same purpose, cannot be repugnant to it.
[5] The Law of England on homicide excusable by self-defence, will
throw light on the sentiments of Grotius in this place. "The law
requires, that the person who kills another in his own defence, should
have retreated as far as he conveniently or safely can, to avoid the
violence of the assault, before he turns upon his assailant; and that,
not fictitiously, or in order to watch his opportunity, but from a
real tenderness of shedding his brother's blood. And though it may be
cowardice, in time of war, between two independent nations, to flee
from our enemy; yet between two fellow subjects the law countenances no
such point of honour; because the king and his courts are the _vindices
injuriarum_, and will give to the party wronged all the satisfaction he
deserves. And this is the doctrine of universal justice, as well as of
the municipal law."--Blackstone's Com. vol. 4, chap. 14.
[6] The author here alludes to the defilement or uncleanness which
the ancients thought was contracted by touching a man, who had killed
another, even innocently and lawfully.--Barbeyrac.
[7] The remainder of this section is omitted, Grotius himself stating
it to be only a repetition and enlargement of his arguments immediately
preceding it. (Translator.)
[8] Grotius does not vouch for the truth of this assertion, but only
quotes the passage to shew there were CHRISTIANS in the army of Marcus
Aurelius.
[9] By the Silanian decree of the Senate, it was ordered that if a
master happened to be murdered in his own house, all the slaves under
the same roof should be put to death; even though no proof appeared of
their being concerned in the murder. We have an example of the case
in Tacitus. Annal. v. xiv. ch. xlii. The Emperor Adrian softened the
rigour of that decree, by ordering that only they should be exposed to
the rack, who were near enough to have heard some noise. Spartian, Life
of Adrian, ch. xviii.
[10] As Grotius has so fully established his argument, it is
unnecessary to review his answer to further objections.--(TRANSLATOR.)
[11] As the topics of the third section have been so fully stated in
the second chapter, that section has been omitted, and the translation
goes on from the second of the original to the fourth. (Translator.)
[12] In case of rebellion, the subjects taken in arms, have no right
to be treated as prisoners of war, but are liable to punishment as
criminals.
[13] "Wrongs are divisible into two sorts or species, PRIVATE WRONGS,
and PUBLIC WRONGS. The former are an infringement or privation of
the private or civil rights belonging to individuals, considered as
individuals, and are therefore frequently termed civil injuries;
the latter are a breach and violation of public rights and duties
which affect the whole community considered as a community,
and are distinguished by the harsher appellation of crimes and
misdemeanors."--Blackst. Com. b. iii. c. i.
[14] The translation proceeds from hence to the second book of the
original, which seems to follow this part without any material break in
the chain of argument: the intermediate sections relating to instances
in the Roman Republic, which do not directly apply to the practice of
modern governments.--TRANSLATOR.
[15] The tenth section is omitted in the translation; as the subject of
Christian forbearance of which it treats, has already been discussed in
the preceeding book.--TRANSLATOR.
[16] Sections XIII. XIV. and XV. of the original are omitted in the
translation.--TRANSLATOR.
[17] _Actus aliquos_, which literally signifies certain acts, may be
rendered by the term incorporeal rights, which imply the right of ways,
dignities, franchises, and many other personal privileges arising out
of certain corporeal kinds of property.
[18] The words of Judge Blackstone will elucidate the meaning of
Grotius in this place. The learned Commentator says, "There are some
few things, which, notwithstanding the general introduction and
continuance of property, must still unavoidably remain in common; being
such wherein nothing but an usufructuary property is capable of being
had: and therefore they still belong to the first occupant, during the
time he holds possession of them, and no longer. Such (among others)
are the elements of light, air, and water; which a man may occupy by
means of his windows, his gardens, his mills, and other conveniences:
such also are the generality of those animals which are said to be
_ferae naturae_, or of a wild and untameable disposition: which any man
may seise upon and keep for his own use or pleasure. All these things,
so long as they remain in possession, every man has a right to enjoy
without disturbance; but if once they escape from his custody, or he
voluntarily abandons the use of them, they return to the common stock,
and any man else has a right to seise and enjoy them afterwards."
[19] The meaning of Grotius in this Section will be more clearly
understood by a brief explanation of the nature of Contracts. "Now
contracts are of two kinds, either express or implied. Express
contracts are openly uttered and avowed at the time of making, as to
deliver an ox, or ten load of timber, or to pay a stated price for
certain goods. Implied are such as reason and justice dictate, and
which therefore the law presumes, that every man undertakes to perform.
As, if I employ a person to do any business for me, or perform any
work; the law implies that I undertook, or contracted, to pay him
as much as his labor deserves. If I take up wares from a tradesman,
without any agreement of price, the law concludes, that I contracted
to pay their real value. And there is also one species of implied
contracts, which runs through and is annexed to all other contracts,
conditions, and covenants, viz. that if I fail in my part of the
agreement, I shall pay the other party such damages as he has sustained
by such my neglect or refusal." Blackst. Com. b. ii. c. 30. p. 442.
[20] There are cases in which monopolies, and the exclusive privileges
of trading companies are not only allowable but absolutely necessary.
"For there are, _says Vattel_, commercial enterprizes that cannot be
carried on without an energy that requires considerable funds, which
surpass the ability of individuals. There are others that would soon
become ruinous, were they not conducted with great prudence, with one
regular spirit, and according to well supported maxims and rules. These
branches of trade cannot be indiscriminately carried on by individuals:
companies are therefore formed, under the authority of the government;
and these companies cannot subsist without an exclusive privilege.
It is therefore advantageous to the nation to grant them: hence have
arisen in different countries, those powerful companies that carry on
commerce with the East."--Law of Nat. b. i. c. viii. sect. 97. p. 42.
[21] Adam Smith in his Wealth of Nations, speaking of treaties of
commerce, observes, that "when a nation binds itself by treaty, either
to permit the entry of certain goods from one foreign country which it
prohibits from all others, or to exempt the goods of one country from
duties to which it subjects those of all others, the country, or at
least the merchants and manufacturers of the country, whose commerce
is so favoured, must necessarily derive great advantages from the
treaty. Those merchants and manufacturers enjoy a sort of monopoly in
the country, which is so indulgent to them. That country becomes a
market both more extensive and more advantageous for their goods: more
extensive, because the goods of other nations being either excluded or
subjected to heavier duties, it takes off a great quantity of theirs:
more advantageous, because the merchants of the favoured country,
enjoying a sort of monopoly there, will often sell their goods for a
better price, than if exposed to the free competition of all other
nations."--Vol. 2. b. iv. ch. vi.
[22] The translation proceeds from the fourth to the ninth Chapter
of the Second book of the original. The intermediate chapters, being
chiefly a repetition of the author's former arguments, respecting the
rights of seas and rivers, and other kinds of dominions; and that
relating to the rights of persons, being so fully treated in the first
volume of Judge Blackstone's Commentaries, it seemed unnecessary to
give them in the present work.--TRANSLATOR.
[23] Section VII of the original is omitted in the
translation.--TRANSLATOR.
[24] The following extracts from Blackstone's Com. b. ii. ch. xxx.
will elucidate the meaning of our author in this place. "Sale or
EXCHANGE is a transmutation of property from one man to another, in
consideration of some price or recompense; for there is no sale without
a recompence." P. 446.
"Where the vendor HATH in himself the property of the goods sold, he
hath the liberty of disposing of them to whom ever he pleases, at any
time, and in any manner." Ibid. 446.
"And notwithstanding any number of intervening sales, if the original
vendor, who sold without having the property, comes again into
possession of the goods, the original owner may take them, when found
in his hands who was guilty of the first breach of justice." Ibid. p.
450.
[25] "A promise is in the nature of a verbal covenant, and wants
nothing but the solemnity of writing and sealing to make it absolutely
the same. If therefore it be to do any explicit act, it is an express
contract, as much as any covenant; and the breach of it is an equal
injury."--Blackst. Com. b. iii. ch. ix. sect. 3.
[26] All the reasonings of Grotius, on this, and on every other point,
are intended to apply not only to the transactions of individuals, but
to the conduct and affairs of nations.
[27] "The most universal and effectual way of discovering the true
meaning of a law, when the words are dubious, is by considering the
REASON and SPIRIT of it, or the cause which moved the legislator to
enact it. For when the reason ceases, the law itself ought likewise to
cease with it."--Blackst. Introd. Com. ch. 2. p. 16.
[28] Sections X. and XI. of the original are omitted in the
translation.--TRANSLATOR.
[29] From this simple origin of barter, and exchange of things have
arisen all the various transactions of commerce. And what was at first
an act of necessity between individuals, has proved an inexhaustible
source of wealth and prosperity to nations.
[30] For the necessity of Monopolies in certain cases, see the note on
the xxi. sect. of the 2nd. chapter of this book.
[31] The Dutch in order to secure to themselves the monopoly of the
spice-trade have frequently destroyed all the productions of the spice
islands beyond what was necessary for their own supply. By the just
policy of the laws of England, "combinations among victuallers or
artificers, to raise the price of provisions, or any commodities, or
the rate of labour, are in many cases severely punished by particular
statutes; and, in general, by statute 2 and 3 Edwd. VI. c. 15, with the
forfeiture of 10 l., or twenty days imprisonment with an allowance of
only bread and water, for the first offence; 20 l. or the pillory for
the second; and 40 l. for the third, or else the pillory, loss of one
ear, and perpetual infamy. In the same manner, by a constitution of
the Emperor Zeno, all monopolies and combinations to keep up the price
of merchandise, provisions, or workmanship, were prohibited, upon pain
of forfeiture of goods and perpetual banishment."--Blackst. Com. b.
iv. c. 12. p. 159.--Also the 39 Geo. III. c. 81, enacted, that every
person combining with others to advance their wages, or decrease the
quantity of work, or any way to affect or controul those who carried
on any manufacture or trade in the conduct and management thereof,
might be convicted before one justice of the peace, and might be
committed to the common gaol for any time not exceeding three calendar
months, or be kept to hard labour in the house of correction for two
months.--Christian's notes to Blackstone on the same place.
[32] "It is possible that an estate or a house may, during the term
of a lease, be so increased or diminished in its value, as to become
worth much more, or much less, than the rent agreed to be paid for it.
In some of which cases it may be doubted, to whom, of natural right,
the advantage or disadvantage belongs. The rule of justice seems to be
this: If the alteration might be EXPECTED by the parties, the hirer
must take the consequence; if it could not, the owner. An orchard, or
a vineyard, or a mine, or a fishery, or a decoy, may this year yield
nothing or next to nothing, yet the tenant shall pay his rent; and
if they next year produce tenfold the usual profit, no more shall be
demanded; because the produce is in its nature precarious, and this
variation might be expected."--Paley's, Mor. Phil. vol. 1. p. 155, 156.
[33] The following passage from Judge Blackstone will both elucidate
the meaning and support the reasoning of our author. "Though money
was originally used only for the purposes of exchange, yet the laws
of any state may be well justified in permitting it to be turned to
the purposes of profit, if the convenience of society (the great end
for which money was invented) shall require it. And that the allowance
of moderate interest tends greatly to the benefit of the public,
especially in a trading country, will appear from that generally
acknowledged principle, that commerce cannot subsist without mutual and
extensive credit. Unless money therefore can be borrowed, trade cannot
be carried on: and if no premium were allowed for the hire of money,
few persons would care to lend it; or at least the ease of borrowing at
short warning (which is the life of commerce) would be entirely at an
end."--B. ii. ch. 30. p. 454, 455.
[34] "The Mosaic law indeed prohibited the lending of money upon
usury. But this was a political and not a moral precept. It only
prohibited the Jews from taking usury of their brethren the Jews, but
in express words permitted them to take it of a stranger: which proves
that the taking of moderate usury, or a reward for the use, is not an
evil in itself, since it was allowed where any but an Israelite was
concerned."--Blackst. Com. b. ii. ch. 30. p. 454. The objections made
to it by Cicero and others, our author observes, are founded more upon
the consequences of usury than upon usury itself. Because it deters
men from borrowing. But, on the other hand, if there were no advantage
attached to the lending of money, none would be found willing to lend;
consequently the benefits arising from a facility of borrowing money to
carry on trade would be defeated.
[35] "Insurances being contracts, the very essence of which consists in
observing the purest good faith and integrity, they are vacated by any
the least shadow of fraud or undue concealment; and, on the other hand,
being much for the benefit and extension of trade, by distributing the
loss or gain among a number of adventurers, they are greatly encouraged
and protected both by common law and acts of parliament."--Blackst.
Com. b. ii. ch. 30. p. 460.
"The contract of insurance is founded upon the purest principles
of morality and abstract justice. Hence it is necessary that the
contracting parties should have perfectly equal knowledge or ignorance
of every material circumstance respecting the thing insured. If on
either side there is any misrepresentation or _allegatio falsi_, or
concealment, or _suppressio veri_, which would in any degree affect the
premium, or the terms of the engagement, the contract is fraudulent and
absolutely void."--Christian's note on the same passage.
[36] There is a distinction to be observed between the NECESSARY, and
the VOLUNTARY law of nations. Vattel defines the NECESSARY law to
be "that which is always obligatory on the conscience, and of which
a nation ought never to lose sight in the line of conduct she is to
pursue in order to fulfil her duty, but when there is a question of
examining what she may demand of other states, she must consult the
VOLUNTARY law, whose maxims are devoted to the safety and advantage of
the universal society of mankind."--Prelim. sect. 28.
[37] The writer quoted in the preceding note defines that obligation
"to be INTERNAL, which binds the conscience, and is deduced from the
rules of duty; and that to be EXTERNAL, which is considered relatively
to other men, and produces some right between them."--Ibid. sect. 17.
[38] A treaty may be more advantageous to one of the contracting
parties than to the other, and yet contain nothing unjust. "Frequently
a great monarch, wishing to engage a weaker state in his interest,
offers her advantageous conditions, promises her gratuitous succours,
or greater than he stipulates for himself; but at the same time he
claims a superiority of dignity, and requires respect from his ally.
It is this last particular which renders THE ALLIANCE UNEQUAL: and to
this circumstance we must attentively advert; for with alliances of
this nature we are not to confound those in which the parties treat
on a footing of equality, though the more powerful of the allies,
for particular reasons, gives more than he receives, promises his
assistance gratis, without requiring gratuitous assistance in his
turn, or promises more considerable succours or even the assistance
of all his forces: here the alliance is equal, but the treaty is
unequal, unless indeed we may be allowed to say, that, as the party
who makes the greater concessions has a greater interest in concluding
the treaty, this consideration restores the equality. Thus, at a
time when France found herself embarrassed in a momentous war with
the house of Austria, and the cardinal de Richelieu wished to humble
that formidable power, he, like an able minister, concluded a treaty
with Gustavus Adolphus, in which all the advantage appeared to be on
the side of Sweden. From a bare consideration of the stipulations of
that treaty, it would have been pronounced an unequal one; but the
advantages which France derived from it, amply compensated for that
inequality."--Vattel, b. ii. ch. 12. sect. 175. p. 200, 201.
[39] The nature of oaths, contracts and promises having been so fully
discussed in the preceding chapters, the translation proceeds from the
thirteenth to the fifteenth chapter of the original, the fourteenth
being in a great measure only a repetition of our author's former
arguments upon the subject.--TRANSLATOR.
[40] On this subject the opinions of our author, and those of Vattel
will reflect light upon each other. From the latter of whom, the
following extracts will place the matter in a clear point of view. "If
a public person, an ambassador, or a general of an army, exceeding
the bounds of his commission, concludes a treaty or a convention
without orders from the sovereign or without being authorised to do
it by virtue of his office, the treaty is null, as being made without
sufficient powers: it cannot become valid without the express or tacit
ratification of the sovereign. The express ratification is a written
deed by which the sovereign approves the treaty, and engages to
observe it. The tacit ratification is implied by certain steps which
the sovereign is justly presumed to take only in pursuance of the
treaty, and which he could not be supposed to take without considering
it as concluded and agreed upon. Thus, on a treaty of peace being
signed by public ministers who have even exceeded the orders of their
sovereigns, if one of the sovereigns causes troops to pass on the
footing of friends through the territories of his reconciled enemy, he
tacitly ratifies the treaty of peace. But if, by a reservatory clause
of the treaty, the ratification of the sovereign be required--as such
reservation is usually understood to imply an express ratification,
it is absolutely requisite that the treaty be thus expressly ratified
before it can acquire its full force. By the Latin term _sponsio_, we
express an agreement relating to affairs of state, made by a public
person, who exceeds the bounds of his commission, and acts without the
orders or command of the sovereign. The person who treats for the state
in this manner without being commissioned for the purpose, promises of
course to use his endeavours for prevailing on the state or sovereign
to ratify the articles he has agreed to: otherwise his engagements
would be nugatory and illusive. The foundation of this agreement can be
no other, on either side, than the hope of such ratification."--Vattel,
b. ii. ch. xiv. sect. 208, 209, p. 219. "The general of an army, _he
proceeds_, has indeed by virtue of his commission, a power to enter,
as circumstances may require, into a private convention,--a compact
relative to himself, to his troops, or to the occurrences of war: but
he has no power to conclude a treaty of peace. He may bind himself,
and the troops under his command, on all occasions where his functions
require that he should have the power of treating; but he cannot bind
the state beyond the extent of his commission."--Ibid. sect. 210. p.
220.
[41] "The right of postliminium is that, in virtue of which, persons
and things taken by the enemy are restored to their former state, on
coming again into the power of the nation to which they belonged."
Vattel, b. iii. ch. xiv. sect. 204.
[42] "Personal creditors are in the Roman law called Chirographarii,
because they commonly have some bond or note of hand for the debt.
And where there are several such creditors, if the debtor's estate is
not sufficient to satisfy them all, each has his share assigned in
proportion to the largeness of the debt, without any regard to the
time, when it was contracted. But in mortgages it was different, the
debt of longest standing was to be first satisfied."--Barbeyrac.
[43] When the Roman army had passed under the yoke at Caudium, upon
their return, when the matter was referred to the senate, it was said
that as the convention was made without the consent of the senate or
people, the Roman people were not bound by it, and a proposal was made
that those who had signed the treaty should again be given up to the
enemy, thus the people would be released from the engagement. This
proposal was agreed to, and a decree to that purpose passed.
[44] Luctatius had inserted this clause that the agreement should be
good and valid, only in case it was approved by the Roman people.--Liv.
lib. xxi. c. xix. See likewise Polybius, lib. iii. c. xxi.
[45] "In all human affairs, where absolute certainty is not at hand
to point out the way, we must take probability for our guide. In
most cases it is extremely probable that the parties have expressed
themselves conformably to the established usage: and such probability
ever affords a strong presumption, which cannot be overruled but by
a still stronger presumption to the contrary. Camden, in his history
of Queen Elizabeth, gives us a treaty, in which it is expressly said
that the treaty shall be precisely understood according to the force
and appropriate signification of the terms."--Vattel, b. ii. ch. xvii.
sect. 271. On the same subject, Judge Blackstone says, that "words are
generally to be understood in their usual and most known signification;
not so much regarding the propriety of grammar, as their general and
popular use."--Introduct. to Com. ch. ii. p. 59.
[46] "The word DAY is understood of the NATURAL DAY, or of the time
during which the sun affords us his light, and of the CIVIL DAY, or
the space of twenty-four hours. When it is used in a convention to
point out a space of time, the subject itself manifestly shews that the
parties mean the civil day, or the term of twenty-four hours."--Vattel,
b. ii. ch. xvii. sect. 280.
[47] "It is a fundamental rule of construction, that penal statutes
shall be construed strictly, and remedial statutes shall be construed
liberally. It was one of the laws of the twelve tables of Rome,
that whenever there was a question between liberty and slavery, the
presumption should be on the side of liberty. This excellent principle
our law has adopted in the construction of penal statutes: for
whenever any ambiguity arises in a statute introducing a new penalty
or punishment, the decision shall be on the side of lenity and mercy;
or in favour of natural right and liberty: or, in other words, the
decision shall be according to the strict letter in favour of the
subject. And though the judges in such cases may frequently raise and
solve difficulties contrary to the intention or the legislature, yet no
further inconvenience can result, than that the law remains as it was
before the statute, and it is more consonant to principles of liberty,
that the judge should acquit whom the legislator intended to punish,
than that he should punish whom the legislator intended to discharge
with impunity. But remedial statutes must be construed according to
the spirit: for in giving relief against fraud, or in the furtherance
and extension of natural right and justice, the judge may safely go
even beyond that which existed in the minds of those who framed the
law."--Christian's Notes on Blackst. Comm. Introd. p. 87.
[48] The case of a promise made on the supposition of a posthumous
child's dying, instanced by our author in this place, bears so near a
resemblance to that of a father's bequeathing his property to another,
believing his son to be dead, that it is omitted in this chapter having
been already given under the head of erroneous promises in the xi.
chapter and 6th section of this book.--(Translator.)
[49] "The variety of human transactions cannot be comprised within
general rules. Occasional decrees therefore become requisite; which
vary with each variation of circumstances, for the measure of what is
indefinite must be indefinite itself, like the leaden ruler in the
Lesbian architecture, which changes its own shape according to that
of the stones to which it is applied. It is manifest, therefore, that
equity is a species of justice, and contrasted with another species
to which it is preferable. A man of equity is he who deliberately and
habitually exercises this virtue; who prefers it in all his dealings
to the rigour of justice; and who, even when the law is on his side,
will not avail himself of this advantage to treat others injuriously or
unhandsomely."--Aristot. Eth. b. v. ch. x.
[50] Owing to circumstances there may be a variation in the conduct,
and yet no change in the principles of a state. This must frequently
happen in the commercial regulations between different countries, who
are obliged to vary their means to secure the unity of their end. Or
if in a treaty between two nations, it is declared there shall be
PERPETUAL amity, and a subsequent declaration of war by one of the
parties pronounces such amicable relations to be at an end, here there
is no variation in PRINCIPLE but in CIRCUMSTANCES, which render such a
dissolution of the amity, that was originally intended to be perpetual,
necessary to the welfare and preservation of that power, the sole
object of all treaties.
[51] To illustrate the nature of GENERAL AND PARTICULAR cases, the
following example is taken from the Puffendorf:--"One law forbids us to
appear in public with arms on holidays: another law commands us to turn
out under arms and repair to our posts, as soon as we hear the sound of
the alarm bell. The alarm is rung on a holiday. In such case we must
obey the latter of the two laws, which creates an exception to the
former."--Jur. Gent, lib. v. c. xii. sect. 23.
[52] "The deputies sent to the assembly of the states of a kingdom,
or a commonwealth are not public ministers like ambassadors, as they
are not sent to foreign powers; but they are public persons, and, in
that respect, are possessed of every exemption and immunity, that
are necessary to the discharge of their functions."--Vatt. b. iv.
ch. vii. sect. 109. Of this nature are the privileges enjoyed by the
representatives of the British people, and denominated the PRIVILEGES
OF PARLIAMENT.
[53] Nothing forms a more striking contrast between ancient and modern
war, then the personal animosities, which seemed to operate upon
the combatants in the former, and the public and national objects,
WITHOUT ANY PERSONAL CONCERN, upon which the latter are undertaken.
Peruse any ancient historian, or the battles in Homer and Virgil,
WHICH THOUGH FICTIONS, DESCRIBE THE MANNERS OF THE AGE, and you see
combatants engaged, on whom the laws of nature and of nations seem to
have lost their force. Read the accounts of modern warfare and you
find hostilities commenced, not from private animosity, but from some
great and national object, in the prosecution of which the feelings of
the individuals appointed to conduct them are not the only springs of
action.
[54] Sections XVI and XVII of the original, relating only to
the refutation of certain abstruse opinions, are omitted in the
translation.--(Translator.)
[55] Section V of the original is omitted in the
translation.--TRANSLATOR.
[56] Thus letters of marque and reprisal, by which individuals are
enabled to redress their own wrongs, must issue from the sovereign
power, otherwise the hostilities of such individuals would be unlawful.
So that here the ACTION would be unlawful, that is unjust, unless
performed by an AGENT, who had a commission from public authority.
[57] The three rules above laid down by our author may be illustrated
by the three following propositions.--
In the first place, it cannot be denied, that war, in the ABSTRACT, is
an evil, but then it is necessary to consider, whether it is not an
evil that must, in many cases, be submitted to in order to avoid still
greater calamities.
Secondly, in the prosecution of a war, where the advantages, or evils
are doubtful, it is necessary to endeavour after the attainment of
new confederacies or alliances, that may compensate for the losses
sustained, or may open out new channels of trade and commerce, which
may supply the place of those that have been closed by the immediate
war.
As an illustration of the third point, we may adduce the conduct of
King William, after the British Cabinet that met at Tunbridge Wells,
August 28, 1698, represented to him how inadequate the spirit of the
nation was to enter into a new war, and to bear additional burdens,
concluding, "this is the truth of the fact upon which your Majesty will
determine what resolution ought to be taken." His Majesty did determine
upon war, as the least of all the evils which faced his people,
notwithstanding the APPARENT inadequacy of his means. And "in that
great war, _says Mr. Burke_, carried on against Louis the XIV, for near
eighteen years, government spared no pains to satisfy the nation, that
though they were to be animated by a desire of glory, glory was not
their ultimate object: but that every thing dear to them, in religion,
in law, in liberty, every thing, which as freemen, as Englishmen, and
as citizens of the great commonwealth of Christendom, they had at
heart, was then at stake."--Lett. on Regic Peace, p. 90.
[58] Thus when a ship makes an appearance of mounting more guns than
she really carries, in order to deter an enemy from attacking her, this
may be considered as one of those negative stratagems, or stratagems of
dissimulation, to which our author alludes.
[59] Besides the NECESSARY law of nations, which is EQUALLY, and at
ALL TIMES binding upon ALL states, there is a POSITIVE law of nations,
consisting of THE VOLUNTARY, THE CONVENTIONAL and THE CUSTOMARY law.
All of which "proceed from the will of nations,--the VOLUNTARY from
their presumed consent, the CONVENTIONAL from an express consent, and
the CUSTOMARY from tacit consent: and as there can be no other mode of
deducing any law from the will of nations, there are only these three
kinds of POSITIVE LAW OF NATIONS."--Vattel, Prelim. Sect. 27.
[60] See b. ii. ch. xxi. sect. 2. of this treatise.
[61] See b. ii. ch. xxiii. sect. 7. _ibid._
[62] But such captures cannot be made without authority from the
sovereign.
[63] The translation proceeds from the XV. to the XXIII. Section of the
original, the intermediate Sections being only a confirmation of the
preceding arguments by examples from ancient history.--TRANSLATOR.
[64] Our author here speaks of things taken in battle. For upon the
surrender of towns, in almost all articles of capitulation it is
stipulated, that the General and other superior officers, and the
officers of regiments shall preserve their swords and their private
baggage, and the noncommissioned officers and soldiers shall preserve
their knapsacks.
[65] "The end of such a law is to animate soldiers and privateers to
pursue robbers and pirates, by the hopes of possessing things taken
even from the subjects of the state."--Barbeyrac.
[66] The tenth Chapter chiefly containing remarks that have been
interspersed in other parts of the work, is omitted here.--TRANSLATOR.
[67] See b. ii. chap. ii. sect. 9.
[68] See b. iii. ch. ii. of this work.
[69] The translation proceeds from the XIII. to the XV. Chapter of the
original.--TRANSLATOR.
[70] B. ii. ch. xv. sect. 7.
[71] "The difficulty of recognising things of this nature, and the
endless disputes, which would arise from the prosecution of the owner's
claims to them, have been deemed motives of sufficient weight for the
establishment of a contrary practice. It is therefore with reason,
that moveables or booty are excepted from the right of postliminium,
unless retaken from the enemy immediately after his capture of them; in
which case the proprietor neither finds a difficulty in recognising his
effects, nor is presumed to have relinquished them."--Vattel b. iii.
ch. xiv. sect. 209.
[72] B. ii. ch. x. sect. 9.
[73] The translation proceeds from the xviith to the xixth chapter of
the original.--TRANSLATOR.
[74] Sections VI, VII, VIII, IX and X of the original are omitted in
the translation. (Translator.)
[75] B. ii. ch. vii. sect. 2.
[76] "The necessity of making peace authorises the Sovereign to dispose
of the property of individuals; and the eminent dominion gives him a
right to do it. Every thing in the political society ought to tend to
the good of the community; and since even the powers of the citizens
are subject to this rule, their property cannot be excepted. The state
could not subsist, or constantly administer the public affairs in the
most advantageous manner, if it had not a power to dispose occasionally
of all kinds of property."--Vattel, b. iv. ch. ii. sect. 12. ibid. b.
i. ch. xx. sect. 244.
[77] "Some damages are done deliberately and by way of precaution, as
when a field, a house, or a garden, belonging to a private person,
is taken for the purpose of erecting on the spot a tower, rampart,
or any other piece of fortification,--or when his standing corn,
or his storehouses are destroyed, to prevent their being of use to
the enemy. Such damages are to be made good to the individual, who
should bear only his quota of the loss. But there are other damages,
caused by inevitable necessity, as for instance, the destruction
caused by the artillery in retaking a town from the enemy. These are
merely accidents, they are misfortunes, which chance deals out to the
proprietors on whom they happen to fall. The sovereign ought indeed to
shew an equitable regard for the sufferers, if the situation of his
affairs will admit of it: but no action lies against the state for
misfortunes of this nature,--for losses, which she has occasioned, not
wilfully, but through necessity and mere accident, in the exertion of
her rights. The same may be said of damages caused by the enemy." Vat.
b. iii. ch. xv. sect. 232.
[78] See b. ii. ch. xv. sect. 12.
[79] "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."--Barbeyrac.
[80] Sections XLII, XLIII, XLIV, & XLV, of the original, relating
to decisions by lot and single combat, are omitted in the
translation.--TRANSLATOR.
[81] The XXIII Chapter of the Original, on Private Faith in War, is
omitted in the translation.--TRANSLATOR.
Transcribers' Notes:
Punctuation and hyphenation were made consistent when a predominant
preference was found in this book; otherwise they were not changed.
In particular, inconsistent punctuation in Biblical citations and
omitted commas or periods in several places have not been remedied.
Ambiguous hyphens at the ends of lines were retained.
Spelling was made consistent when a predominant preference was found
in this book, or when some occurrences of a word matched modern usage
while other occurrences did not; otherwise, all variations were
retained. Words spelled differently in quoted material than in the
primary author's text were not changed.
Simple typographical errors were corrected; occasional unbalanced
quotation marks remedied when unambiguous, and otherwise retained.
These are noted below.
Several chapters were omitted from the English translation of which
this is a transcription. The reasons for this are given in the
footnotes.
The Index was not checked for proper alphabetization or correct page
references.
Footnotes, originally at the bottom pages, have been collected and moved
to the end of this eBook.
"Controul" is always spelled that way in the original book.
"Commit" sometimes is used where modern practice would use "commits".
Text uses both "sometimes" and "some times", "anything" and "any thing".
The signatures on pages ix and 17 were actual signatures.
Some footnotes reference Chapters that were omitted from this translation.
Page 3: "Jugemens d' Oléron" likely is a misprint for "Jugements d'
Oléron"; "Saurez" may be a misprint for "Suarez".
Page 21: "δικαιώματα" {dikaiômata} was misprinted as "δικαὠματα"
{dikaômata} and has been changed here.
Page 43: No matching closing quotation mark found for sentence
beginning '"How can kings serve the Lord'.
Page 55: No matching closing quotation mark found for clause beginning
'"what can be done by a magistrate'.
Page 59: No matching closing quotation mark found for sentence
beginning '"For though UNDER SOME'.
Page 73: "ἀρχας πολεμων" {archas polemôn} was misprinted as
"ἀρχασπολεμων" {archaspolemôn}; changed here.
Page 78: No matching opening quotation mark found for sentence ending
'whom he himself apprehended injury or destruction."'
Page 107: "will not continue to be same river" likely is missing "the".
Page 110: No matching closing quotation mark found for clause beginning
'"that he would restore'.
Page 193: "what is required to be done at a" was printed as "to be one
at"; changed here.
Page 217: "sun-set" was printed that way.
Page 218: "Goliah" was printed that way.
Page 249: "uninjured or endangered" may be a misprint for "injured".
Page 267: "αἰτιας" {aitias} was misprinted as "ὰιτιας" {aitias};
changed here.
Page 286: Transcriber added closing quotation mark at the end of the
paragraph ending with 'or even imminent danger.'
Page 310: the colon in "which is an act of justice: in the next place"
was poorly printed, and may be either a different punctuation mark or
just a space.
Page 314: the closing quotation mark in 'denomination of pirates and
robbers." With' was added by the Transcriber.
Page 321: Transcriber added a comma in "by that act, voluntarily"
because there was excess space between the words, which suggested a
misprint.
Page 378: "to remain neuter" was printed that way.
Footnote 18: Transcriber added a closing quotation mark at the end of
the footnote.
Footnote 19: Transcriber added a closing quotation mark after 'my
neglect or refusal.'
End of Project Gutenberg's The Rights of War and Peace, by Hugo Grotius